Could a Maryland minor visit the local health department for birth control or STD treatment during school hours without their parents' consent, and could the school get in trouble for not telling the parents?

Plain-English summary

Talbot County school officials raised questions about student visits to the local health department during the school day, and Maryland's State Superintendent of Schools asked the Attorney General to address them. HG §20-102 lists conditions for which a minor may consent to treatment or advice, including drug abuse, alcoholism, venereal disease, pregnancy, contraception other than sterilization, and examinations related to an alleged rape or sexual offense. The opinion set aside the questions about drug and alcohol abuse services because of unresolved federal confidentiality rules. It addressed visits for the other covered care, parental notice, and whether a school nurse could distribute condoms.

For the services it addressed, the opinion found no state-law barrier to a minor's choice to seek care at a health department, though local attendance rules could still govern leaving school. It found school staff generally would not be liable for failing to tell parents about a visit or its purpose. Liability could arise if staff ignored a written attendance policy requiring parental consent or knew of unusual circumstances making harm foreseeable. The opinion also found federal constitutional claims under 42 U.S.C. §1983 unlikely absent extraordinary facts. These conclusions did not resolve the separately reserved questions about drug and alcohol abuse services.

On condom distribution, the opinion concluded that neither ED §7-401 (the school health services statute) nor state regulations either required or forbade a school nurse from distributing condoms, so the choice was left entirely to local school boards to decide as a matter of local policy.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Maryland's minor consent, school health services, and school attendance provisions have all been subject to amendment since 1991, and case law on school liability, minor consent, and constitutional parental-rights claims has continued to develop. Verify the current text of HG §20-102, ED §7-401, and the relevant COMAR attendance regulations before relying on any specific rule described here.

Common questions

Could a Maryland student see the local health department for birth control or an STD without a parent's permission? For birth control and the other care it analyzed, the opinion found no state-law barrier to a minor's choice to visit the health department without parental consent. School attendance rules could still govern leaving campus. Although HG §20-102(c) also lists drug abuse and alcoholism, the opinion expressly left questions about those services unanswered.

Could a school get sued for not telling parents their child visited the health department? The opinion concluded that in most situations, school staff would not be liable for failing to notify parents either that a visit happened or why, because ordinary negligence law requires a duty and a foreseeable, proximate cause of harm that generally would not be present, though a school could face exposure if it had a written policy requiring parental consent for absences but let students leave informally without it, or if staff knew of specific circumstances making harm foreseeable.

Could a school nurse hand out condoms to students without getting in legal trouble? The opinion concluded that state law at the time neither required nor prohibited condom distribution by school nurses, leaving the decision entirely up to each local school board's own policy.

Background and statutory framework

Maryland's minor consent law, HG §20-102, created an exception to the common law rule that parents make medical decisions for their children. Under HG §20-102(a), a married minor or a minor who is a parent could consent to treatment; under HG §20-102(b), any minor could consent in an emergency where delaying to get another person's consent would harm the minor's life or health; and under HG §20-102(c), any minor could consent to treatment or advice for drug abuse, alcoholism, venereal disease, pregnancy, contraception other than sterilization, and rape-related physical exams. HG §20-102(d) gave physicians and those acting under a physician's direction immunity from liability for treating a minor solely because the minor lacked capacity to consent, and HG §20-102(e) gave the attending physician (or, on the physician's direction, certain hospital or clinic staff) discretion, but not an obligation, to notify a parent of treatment provided under the section. The opinion noted this discretion did not extend to other health personnel, and that no comparable statute governed non-medical staff's conduct. Related but distinct statutes covered minors' capacity to consent to mental health treatment (HG §20-104, for minors 16 and older), abortion notice requirements (HG §20-103, as amended by Chapter 1 of the Laws of Maryland 1991), and child abuse and neglect treatment (§5-712 of the Family Law Article).

School health services themselves were governed by ED §7-401, requiring each county school board, with county health department assistance, to provide adequate school health services and health education, but the opinion found the statute set no limits on what those services could include, so it neither forbade nor required contraceptive services like condom distribution. Student absences to visit the health department implicated Maryland's compulsory attendance law (ED §7-301) and COMAR 13A.08.01.03 and .04A defining lawful and (by default) unlawful absences; health care visits were not on the enumerated lawful-absence list but typically fell under a catch-all provision, COMAR 13A.08.01.03J, for other good-cause circumstances, and local systems retained broad discretion under COMAR 13A.08.01.05B to write their own attendance and parental-consent policies. School nurses, whose scope of practice the opinion tied to §8-101(f) of the Health Occupations Article, could provide covered care or referrals to the health department without parental consent in the situations analyzed. The opinion found a nurse who kept such a visit confidential was unlikely to face liability, citing authority that unauthorized disclosure of confidential patient information can itself be a tort. It reserved drug and alcohol abuse service questions.

For non-medical staff (teachers, administrators, counselors), the opinion applied ordinary Maryland negligence principles from Cramer v. Housing Opportunities Commission, Scott v. Watson, and Perod v. Williams, layered onto the special in loco parentis duty of care schools owe students recognized in Lunsford v. Board of Educ., Segerman v. Jones, and Collins v. Board of Educ. It concluded no general duty to notify parents existed absent foreseeable, extraordinary circumstances (citing B.N. v. K.K. and Henley v. Prince George's County on the "highly extraordinary" causation standard), and that the narrow "duty to warn" doctrine recognized in cases like Tarasoff v. Regents of University of California and Thompson v. County of Alameda, and applied narrowly in Maryland in Lamb v. Hopkins and Furr v. Spring Grove State Hospital, did not extend to a school's knowledge of a student's plan to visit a health clinic. It did note that a school's own written policy requiring parental consent for absences, if violated in practice, could support a negligence claim under Collins v. Board of Educ. and Austin v. Buettner (a policy violation being evidence, though not conclusive proof, of negligence), but that proximate cause under Peterson v. Underwood and Garbis v. Apatoff would still be difficult to establish in most hypothetical injury scenarios. On federal constitutional claims under 42 U.S.C. §1983, the opinion read Bellotti v. Baird and H.L. v. Matheson as establishing only that states may sometimes require parental notification, not that the Constitution demands it, and applied Martinez v. California and Daniels v. Williams to conclude merely negligent conduct could not support a constitutional claim, making such claims unlikely to succeed absent extraordinary facts.

Citations and references

Statutes:

• §20-102 of the Health-General Article, Maryland's minor medical consent law
• HG §20-102(a), consent capacity for married minors or minor parents
• HG §20-102(b), emergency consent capacity for any minor
• HG §20-102(c), listing conditions (drug abuse, alcoholism, venereal disease, pregnancy, contraception, rape-related exams) for which any minor may consent
• HG §20-102(d), immunity for physicians and those acting under a physician's direction
• HG §20-102(e), discretionary parental notification by the attending physician or certain hospital/clinic staff
• HG §20-104, minors 16 and older consenting to mental health treatment
• HG §20-103, minor abortion parental notice requirements
• Chapter 1 of the Laws of Maryland 1991, amending HG §20-103
• §5-712 of the Family Law Article, consent exceptions for child abuse and neglect treatment
• ED §7-401, requiring county school boards to provide school health services and health education
• ED §7-401(a)(1) and (2), the specific adequate-health-services and health-education duties
• ED §7-401(b)(1), joint state standard-setting duties
• ED §7-410, confidentiality requirements for students seeking drug abuse assistance
• ED §7-301, Maryland's compulsory school attendance law
• COMAR 13A.08.01.03, enumerating lawful absences
• COMAR 13A.08.01.04A, presuming non-enumerated absences unlawful
• COMAR 13A.08.01.03J, the catch-all good-cause lawful absence provision
• COMAR 13A.08.01.05B, requiring local attendance policies including consent and verification procedures
• §8-101(f) of the Health Occupations Article, defining the scope of registered nursing practice
• ED §7-402, §7-403.1, and §7-409, mandatory hearing/vision testing, scoliosis screening, and drug education requirements
• COMAR 13A.05.05.05, the school health services program bylaw
• COMAR 13A.05.05.05C(6) and (1)(d), communicable disease prevention and healthy-attitudes program provisions
• COMAR 13A.04.01, family life and human development instruction standards
• 42 U.S.C. §1983, the federal civil rights claim statute

Cases:

• Cramer v. Housing Opportunities Commission, 304 Md. 705, 712, 501 A.2d 35 (1985), the elements of a Maryland negligence claim
• Scott v. Watson, 278 Md. 160, 165, 359 A.2d 548 (1976), on negligence elements and foreseeability-based duty
• Perod v. Williams, 258 Md. 663, 669, 267 A.2d 114 (1970), on negligence elements
• Lunsford v. Board of Educ., 280 Md. 665, 676, 374 A.2d 1162 (1977), on a school's in loco parentis duty of care
• Segerman v. Jones, 256 Md. 109, 123-24, 259 A.2d 794 (1969), on the reasonable-foreseeability standard for school duty
• Collins v. Board of Educ., 48 Md. App. 213, 218, 426 A.2d 10 (1981), on a school's duty to enforce its own policies
• B.N. v. K.K., 312 Md. 135, 142, 538 A.2d 1175 (1988), on the "highly extraordinary" causation standard and duty to warn of infectious disease
• Henley v. Prince George's County, 305 Md. 320, 334, 503 A.2d 1333 (1986), quoted on the "highly extraordinary" standard
• Thompson v. County of Alameda, 21 Cal.3d 741, 614 P.2d 728 (1980), on the duty-to-warn doctrine's limited scope
• Tarasoff v. Regents of University of California, 17 Cal.3d 425, 551 P.2d 334 (1976), the leading duty-to-warn case
• Lamb v. Hopkins, 303 Md. 236, 251, 492 A.2d 1297 (1985), Maryland's narrow application of the duty to warn
• Furr v. Spring Grove State Hospital, 53 Md. App. 474, 488-89, 454 A.2d 414 (1983), same
• Austin v. Buettner, 211 Md. 61, 70, 124 A.2d 793 (1955), on a policy or statute violation as evidence, not proof, of negligence
• Peterson v. Underwood, 258 Md. 9, 16, 264 A.2d 851 (1970), on intervening causes breaking proximate cause
• Garbis v. Apatoff, 192 Md. 12, 17, 63 A.2d 307 (1948), on the "direct and continuing cause" requirement
• Bellotti v. Baird, 443 U.S. 622, 637 (1979), on constitutional deference to parental control of children
• H.L. v. Matheson, 450 U.S. 398 (1980), upholding a state law requiring physician notice of a minor's abortion
• Martinez v. California, 444 U.S. 277, 284-85 (1980), on no constitutional violation absent proof of the underlying tort elements
• Daniels v. Williams, 474 U.S. 327, 333 (1986), holding merely negligent government conduct does not support a constitutional claim

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1991/Volume76_1991.pdf (this opinion appears at printed pages 163-180 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Education - Public Schools - Health - Torts - Student Visits to Health Department Without Parental Consent Or Notice - Condom Distribution

May 23, 1991

Dr. Joseph L. Shilling
State Superintendent of Schools

You have requested our opinion on a series of questions posed by Talbot County school officials regarding the provision of health services to public school students during the school day. Three of these inquiries concern student visits to the local health department during school hours:

1. Under what circumstances may a minor visit the health department during school hours to seek treatment or advice about medical problems for which parental consent is not required?

2. Would school staff be held liable for not informing parents about known health department visits for this purpose by their child during the school day?

3. Would school staff be held liable for not informing parents about the reasons for such health department visits, if known?

Your last question addresses an in-school health service:

4. Under what circumstances may a school nurse make condoms available to students?

For the reasons stated below, we conclude as follows:

1. State law permits a minor to consent to treatment, and therefore to choose a provider of treatment, for certain medical conditions identified in §20-102 of the Health-General Article ("HG" Article). If the minor seeks treatment or advice about these conditions from the local health department, State law imposes no preconditions on such visits. However, school authorities may require the minor to conform to reasonable local school attendance and truancy policies when visiting the health department during the school day.

2. In most situations, school staff would not be held liable merely because they did not inform parents of the fact of a student's visit to the health department to obtain treatment or advice about a condition identified in HG §20-102.

3. Likewise, in most situations, school staff would not be held liable merely because they did not inform parents of the reasons for a student's visit to the health department for this purpose.

4. Finally, current State law neither prohibits nor requires the distribution of condoms by school nurses; at present the issue is solely one of local policy.

I

Background

Public health services are available to public school students through two sources: school health services and the local health department. They may be offered on school premises, as part of a state-mandated health program, typically by a school nurse;1 or they may be offered in a public health clinic operated by the local health department. The latter services are not part of the school health program, although student visits to public health clinics might occur as the result of a referral by the school nurse.

The General Assembly requires local boards of education and health departments to provide school health services:

(a) With the assistance of the county health department, each county board shall provide:

(1) Adequate school health services;
(2) Instruction in health education; and

1
We recognize that in some schools another health professional, like a physician's assistant, might staff the program. For brevity's sake, and to reflect the most common situation, this opinion will refer simply to school nurses.

(3) A healthful school environment.

(b) The Department of Education and the Department of Health and Mental Hygiene jointly shall:

(1) Develop public standards and guidelines for school health programs; and

(2) Offer assistance to the county boards and county health departments in their implementation.

Section §7-401 of the Education Article ("ED" Article).2

Subject to these broad requirements, each school district has established a school health program. In some school districts, the local health department employs the school nurses. In others, the school system assumes that responsibility itself. In six districts, the health department and the school share the responsibility, through various mixes of supervision and funding. Regardless of the entity that employs school nurses, both school and public health authorities share responsibility for the school health program.

In most of the State's schools, school health services are limited to a few key functions: identification of health problems, counseling students or parents concerning those problems, and referral to a person who will care for or treat the child. Older students may visit the school nurse for advice about birth control or for help with drug or alcohol abuse problems.3

2 In accordance with ED §7-401(b)(1), the State Department of Education and the Department of Health and Mental Hygiene developed, and the State Department of Education proposed, detailed regulations concerning school health standards. See 17 Md Reg. 992 (April 20, 1990) (proposed COMAR 13A.04.18). The State Board of Education adopted the proposed regulations, with minor changes, on March 27, 1991. The new standards specifically identify the areas of responsibility of the school nurse. Overall responsibility for ensuring that the new standards are met rest jointly with the local school superintendent and the local health officer. These regulations do not address explicitly any of the four questions raised in your request.
3
This opinion does not address the complex confidentiality questions that arise when students seek assistance from schools or public health authorities for drug or alcohol abuse problems. Many Maryland counties have established special programs for the identification and treatment of student substance abuse, and these programs pose unique problems with respect to parental notice and consent.
Moreover, student substance abuse programs are subject to federal regulations adopted by the Departments of Education and Health and Human Services, about which the Attorney General's Office has sought clarification from federal officials. Until we receive such clarification, any attempt to answer your questions with respect to drug and alcohol abuse services would be premature.

II

The Maryland Minor Consent Law

Any analysis of the legal obligation to notify and seek the consent of parents for health services provided to a minor must begin with a review of HG §20-102. This section provides that a minor has "the same capacity as an adult to consent to" certain forms of medical treatment. The statute thus creates an exception to the common law principle that parents, as their child's natural guardians, make medical decisions on the child's behalf.

Under HG §20-102(a), a minor who is married or the parent of a child may consent to medical treatment. In addition, under HG §20- 102(b), any minor may consent to treatment in an emergency situation "if, in the judgment of the attending physician, the life or health of the minor would be affected adversely by delaying treatment to obtain the consent of another individual."

Most pertinently, HG §20-102(c) identifies categories of specific treatment for which minors may consent to medical advice and treatment. These include "[t]reatment for or advice about" drug abuse; alcoholism; venereal disease; pregnancy; contraception other than sterilization; and physical examination to obtain evidence of an alleged rape or sexual offense. HG §20-102(c).4 Thus, minors have the capacity

4
The full text of this subsection is as follows:
(c) A minor has the same capacity as an adult to consent to:
(1) Treatment for or advice about drug abuse;
(2) Treatment for or advice about alcoholism;
(3) Treatment for or advice about venereal disease;
(4) Treatment for or advice about pregnancy;
(5) Treatment for or advice about contraception other than sterilization;
(6) Physical examination and treatment of injuries from an alleged rape or sexual offense; and
(7) Physical examination to obtain evidence of an alleged rape or sexual offense.
Other statutory provisions deal with a minor's capacity to consent to medical services for mental or emotional disorders, HG §20-104 (giving minors 16 years old or older the capacity to consent to consultation, diagnosis, and treatment); abortion, HG §20-103 (as amended by Chapter 1 of the Laws of Maryland 1991) (requiring parental notice of a minor's abortion under certain circumstances); and child abuse and neglect, §5-712 of the Family Law Article (parental consent not required for emergency treatment or treatment to determine the nature or extent of child abuse or neglect).

to consent to certain health services often sought by high school students.

The Maryland minor consent law affords certain legal protection to persons involved in the medical treatment of minors. First, HG §20- 102(d) grants immunity from civil liability or criminal and disciplinary penalties to physicians and persons acting under the direction of a physician for treating a minor "solely because the minor did not have the capacity to consent."

In addition, HG §20-102(e) confers upon physicians broad discretion to determine whether to notify a minor's parents of "treatment needed by the minor or provided to the minor under this section." The attending physician or other member of the medical staff of a hospital or public clinic "may, but need not" notify the parent or guardian, even "[w]ithout the consent of or over the express objection of a minor."5

HG §20-102 applies only to persons actually providing medical treatment and advice. No analogous provision in the Education Article or elsewhere in the Maryland Code governs the conduct of other persons in this regard.6

5
HG §20-102(e) specifically concerns disclosure to a "parent, guardian, or custodian of the minor or the spouse of the parent." Throughout this opinion, references to "parents" are intended to encompass any person who has the capacity to consent to medical treatment for a child.

III

Visits to Health Department Clinics

Students may make appointments with the local health department as a result of school nurse referrals or on their own initiative. Students often use the health department for birth control purposes, and health department staff generally provide contraceptive services to high school students without parental notice or consent. For practical reasons, public health clinics often schedule student visits during the school day.

State law does not address a minor's access to the facilities of a local health department. If a minor, who has the legal right to consent to "[t]reatment for or advice about" the various conditions listed in HG §20-102(c), chooses to obtain that treatment or advice at a local public health clinic, State law poses no impediment to that choice.

6
ED §7-410 does impose certain confidentiality requirements when a student "seeks information to overcome any form of drug abuse ..." As discussed in note 3 above, issues related to drug abuse treatment are not addressed in this opinion.

Student visits to the health department during school hours may implicate local school attendance and truancy policies, however. Under Maryland's compulsory school attendance law, parents of children under sixteen years of age have a duty to ensure that such children regularly attend public school or its equivalent, except in the case of a lawful absence. ED §7-301.

State regulations enumerate conditions that qualify as lawful absences. COMAR 13A.08.01.03. "An absence, including absence for any portion of the day, for any reason other than those cited as lawful are presumed to be unlawful ...." COMAR 13A.08.01.04A. Student absences to receive health care services do not appear in the list of lawful absences. However, the regulation permits county school officials to designate as a lawful absence any "[o]ther emergency or set of circumstances which...constitutes a good and sufficient cause for absence from school." COMAR 13A.08.01.03J. School systems currently permit absences for medical visits under this catch-all provision.

The regulation also requires local systems to develop student attendance policies, which are to include "[r]easons for lawful and unlawful absences" as defined in the regulations, "[c]larification of special situations for unlawful absence," and a "[p]rocedure to verify absences/tardiness including] responsible persons, time limits, and methods of absent/tardy verification." COMAR 13A.08.01.05B(1) and (3). Local school systems retain significant discretion in crafting these policies. Typically, the attendance policies of the local school systems require parental consent before students are allowed to leave school premises during the school day.7

7
Local school systems are required to distribute school attendance policies, including parental notice and consent requirements, to parents and other members of the community. COMAR 13A.08.01.05B(8)

IV

Potential Sources of Liability

In assessing whether school staff may be liable for permitting students to receive health department services during the school day without parental consent or notice, we must first identify the legally cognizable claims, if any, that parents or students may assert. Given the detailed provisions of HG §20-102 and the absence of any corresponding State law directed at persons outside the health profession, this analysis differs in part according to the profession of the staff member. However, the underlying principles apply to all school staff.

A. School Nurses

School nurses screen, counsel, and refer students with health problems, including those conditions enumerated in HG §20-102(c). Thus, they may be said to provide minors with "treatment for and advice about" health conditions under HG §20-102(c).8 We conclude, therefore, that a student may obtain from a school nurse services related to the conditions enumerated in HG §20-102(c), including advice and counseling concerning contraception, sexually transmitted diseases, and pregnancy, as well as referrals to the local health department for treatment of those conditions. A school nurse does not risk liability by providing health care services without parental consent to a student when HG §20-102 authorizes that care.

In our view, moreover, a school nurse who respects a student's desire that the fact of treatment be maintained in confidence is most unlikely to face liability as a result. The very purpose of HG §20-102(c) is to facilitate the care of minors who might be too embarrassed to seek medical help if their parents had to be told of the problem or who might even face abuse or abandonment if their parents knew. A school nurse breaches no legal duty to the student's parents by failing to reveal the student's visit when that visit is encompassed by HG §20-102. See Part IVB below.

Indeed, a school nurse might face a greater risk of liability if he or she disclosed that information without authorization from the minor. Under some circumstances, a health care provider's "disclosure of any information about the plaintiff in breach of the duty of confidence owed to the plaintiff" is actionable. Prosser and Keeton on the Law of Torts §117, at 121 (1988 Supp.). See also Note, Breach of Confidence: An Emerging Tort, 82 Col. L. Rev. 1426 (1982). See generally Annotation, Physician's Tort Liability for Unauthorized Disclosure of Confidential Information About Patient, 48 A.L.R. 4th 668 (1986).

Of course, instances may arise when a school nurse believes that parental notification is warranted. In those instances, we recommend that, prior to any decision to notify parents of a referral to the health department, the school nurse consult with a person who is authorized under HG §20-102(e) to make that disclosure. As discussed in Part II

8
See §8-101(f) of the Health Occupations Article (scope of registered nursing).

above, HG §20-102(e) permits parental notification on a discretionary basis by "the attending physician or, on the advice or direction of the attending physician, by a member of the medical staff of a hospital or public clinic." The statute does not grant the same discretion to other health personnel.

B. Other School Staff

Your questions apply not only to school nurses but also to teachers, administrators, counselors, and other staff. Any claims against these personnel for failure to notify parents of a student's visit to a health department would be decided under common law tort principles.

The elements of a cause of action for negligence in Maryland are well established: "To establish a cause of action in negligence, a plaintiff must prove the existence of a duty owed by a defendant to him ..., a breach of that duty, a legally cognizable causal relationship between the breach of duty and the harm suffered, and damages." Cramer v. Housing Opportunities Commission, 304 Md. 705, 712, 501 A.2d 35 (1985). See also, e.g., Scott v. Watson, 278 Md. 160, 165, 359 A.2d 548 (1976); Perod v. Williams, 258 Md. 663, 669, 267 A.2d 114 (1970). See generally Gilbert, Gilbert, and Gilbert, Maryland Tort Law Handbook §1.4, at 5 (1986). Thus, to prevail on a claim for negligence, the plaintiff would have to demonstrate that school staff possessed a duty to notify the parents that the child was leaving school premises to obtain medical services at the local health department; that school staff breached that duty by failing to notify the parent; that the failure to give notice was the proximate cause of some injury to the student or the parents; and that damages resulted.

As a general matter, we consider it unlikely that a school staff member who learns that a student intends to seek services at the local health department has a legal duty to notify the parents of the student's plan.

Maryland courts have held consistently that "the relation of a school vis a vis a pupil is analogous to one who stands in loco parentis, with the result that a school is under a special duty to exercise reasonable care to protect a pupil from harm." Lunsford v. Board of Educ., 280 Md. 665, 676, 374 A.2d 1162 (1977) (citing Segerman v. Jones, 256 Md. 109, 123-24, 259 A.2d 794 (1969)). See also Collins v. Board of Educ., 48 Md. App. 213, 218, 426 A.2d 10 (1981) (school authorities have a common law duty, "as the temporary custodian of children, to exercise reasonable care for their protection").

Under the "reasonable care" standard, the failure of school staff to take an action "is not likely to give rise to a cause of action for injury to a student, unless under all the circumstances the possibility of injury is reasonably foreseeable." Segerman, 256 Md. at 131. No duty exists where "'it appears "highly extraordinary" that the negligent conduct should have brought about the harm.'" B.N. v. K.K., 312 Md. 135, 142, 538 A.2d 1175 (1988) (quoting Henley v. Prince George's County, 305 Md. 320, 334, 503 A.2d 1333 (1986)). Except in "extraordinary" factual circumstances, it is difficult to discern the foreseeable injury that may result from a student's decision to seek health services from the local government's own medical facilities. As such, we conclude that school staff have no general legal duty - either to the student or the parent - to inform parents of the student's plan.9

Indeed, with the passage of HG §20-102, the General Assembly vested substantial discretion in health professionals to determine when it is appropriate to inform parents of a child's medical treatment for the conditions identified in HG §20-102(c). With respect to those conditions, the law provides that a minor "has the same capacity as an adult to consent to" advice and treatment and that "the attending physician" (or certain members of the medical staff, acting upon the physician's direction) may notify parents of that treatment. HG §20- 102(c) and (e).

Under this statutory scheme, the General Assembly intended that medical personnel should use their expertise and knowledge of the minor's medical, emotional, and social circumstances in deciding whether to disclose that condition to the patient's family. Any imposition of a legal duty on school administrators and other school staff to make such a disclosure before the physician has had the opportunity to exercise his or her statutory discretion would undermine this legislative objective.

Of course, we cannot rule out the unusual case in which parental notification would be mandated under the standard of reasonable care. If the child were very young, or if school staff were aware that a

9
The absence of a legal duty, we wish to emphasize, does not prevent schools from adhering to policies that encourage parental involvement.

student's plan to seek medical services was likely to result in harm to the student or the parent and that the injury could be averted by disclosure to the parent, then a duty to notify the parents might well arise. See generally Scott v. Watson, 278 Md. 160, 169-70, 359 A.2d 548 (1976) (a landlord's special knowledge of criminal activity in common areas of an apartment building might impose a duty to take precautions to protect tenants from crime in those areas).

In the absence of knowledge of extraordinary circumstances, however, no duty is likely to be found by the courts. Scott v. Watson, 278 Md. at 170. Under the "reasonable care" standard, educators cannot be expected to investigate details of a student's personal life simply because the educator is aware that the student plans to visit the health department. We believe that "reasonable care" does not require a teacher or principal to inquire into a student's specific health concerns or into the nature of the student's relationship with his or her parents each time a student indicates an intention to leave school premises to receive medical services.

Even if no generalized duty exists requiring school staff to inform parents, it might be argued that the recently developed common law "duty to warn" doctrine imposes a heightened duty. A tort law "duty to warn" a party of the threatened criminal conduct of a third person has been recognized in many jurisdictions but has been applied only in limited circumstances. See, e.g., Thompson v. County of Alameda, 21 Cal.3d 741, 614 P.2d 728 (1980). Most importantly, courts have found a duty to warn only to prevent criminal activity threatening physical harm to specific individuals. See, e.g., Tarasoff v. Regents of University of California, 17 Cal.3d 425, 551 P.2d 334 (1976) (finding liability when a psychiatrist failed to warn the girlfriend of a patient that the patient specifically had told the psychiatrist that he intended to kill the girlfriend.)

School officials' knowledge of a student's intent to visit a health clinic in no way resembles information that a party poses a threat to the physical safety of others. We have found no cases from other jurisdictions in which the courts have identified a duty on the part of school officials to warn parents of their child's plan to seek health care. Moreover, Maryland courts have applied the "duty to warn" doctrine quite narrowly. See Lamb v. Hopkins, 303 Md. 236, 251, 492 A.2d 1297 (1985) (probation officers had no duty to the public to report known drunk driving probation violations to the court of a probationer who later injured a child in an automobile accident that occurred while the driver was intoxicated); Furr v. Spring Grove State Hospital, 53 Md. App. 474, 488-89, 454 A.2d 414 (1983) (state hospital was not liable when one of its staff psychiatrists failed to take affirmative measures to protect the public from the dangerous propensities of a hospital patient.) Cf. B.N. v. K.K., 312 Md. at 140-142 (relying on the traditional tort law doctrine that the carrier of an infectious disease has a duty to take reasonable precautions to prevent transmission of that disease, the Court found a genital herpes carrier negligent for failing to warn or refrain from sexual contact with a sexual partner). We do not believe that Maryland law has established a broad and novel legal obligation to warn parents of the medical visits of their children.

At the same time, the attendance policies of some school systems may suggest an obligation for school officials to notify parents of student health department visits made during school hours. Where school system policy does not deem an absence to receive medical services to be lawful, or where local rules condition lawful absences upon parental consent, parents may claim that school officials have a duty to ensure that students safely remain on school premises and are negligent if they permit students to leave school premises for health department visits in violation of those policies. See Collins v. Board of Educ., 48 Md. App. 213, 218, 426 A.2d 10 (1980) (failure of school officials to enforce local policies and regulations may constitute the breach of a tort law duty).10 Although "the mere violation of a statute or ordinance will not support an action for damages," the Court of Appeals has held repeatedly that evidence of such a violation may be evidence of negligence. Austin v. Buettner, 211 Md. 61, 70, 124 A.2d 793 (1955).

Thus, parents may point to a school's violation of its own policy as evidence of the breach of a duty to ensure that students do not leave school premises without parental consent. Nonetheless, we note that schools can eliminate this potential for liability simply by bringing their attendance policies into line with actual practice. For example, if a

10
Collins involved a negligence suit, filed by the parents of a student injured while riding home from school in a car driven by a fellow student. The plaintiffs had argued that the school board was negligent in failing to enforce its student parking regulations. While the court found insufficient allegations that the driver violated the parking regulations or that the policy barred students from riding home from school with friends, it did suggest that the negligence claim may have been supported with evidence of a violation of relevant policy by school officials.

school system allows students to visit the local health department during school hours, its attendance rules should state that absence in order to receive health care services is a lawful absence pursuant to COMAR 13A.08.01.03J; it should remove the parental consent requirement for absences to receive medical services.11 Under such a policy, schools may require written acknowledgment of the student's visit from the clinic to be submitted either before or after the child's absence or may take other measures deemed necessary to ensure adherence to local attendance policies.

Even if one assumes that the failure to inform parents of the health department visits of their child might constitute negligence, it does not follow that school officials would inevitably be liable for the omission. "One who breaches a duty to another is said to be negligent, but that negligence is actionable only if it is a proximate cause of damages." Cramer v. Housing Opportunities Comm'n, 304 Md. at 712-13. Moreover, causation must be proved, even where the claimant alleges that the defendant negligently violated the school system's attendance policy: "The mere violation of a statute or ordinance will not support an action for damages, even though it may be evidence of negligence, unless there is legally sufficient evidence to show that the violation was the proximate cause of the injury." Austin, 211 Md. at 70.

In most situations, it would be difficult to identify an injury caused proximately by a school's failure to notify a parent of a child's health department visit. While the failure of school staff to notify parents of a child's plan to receive health services during school hours might make it somewhat easier for the student to leave school premises to seek out

11
There is no legal obligation to establish such a policy, if a local school board does not wish to allow students to leave school premises for medical visits without parental consent. For example, according to a November 12, 1990 advice letter prepared by local counsel to the Superintendent of Talbot County Schools, it is apparent that Talbot County Board of Education Administrative Regulations require written parental permission for a student to leave school premises. Letter of Edward J. Gutman to Dr. John P. Fink (November 12, 1990). Based on this requirement, as well as State law provisions, counsel advised the superintendent that school officials lack authority to allow students to leave school premises for health department visits without parental consent. While we concur that Talbot County schools may enforce the local board's parental consent requirement, for the reasons stated in this opinion, we cannot conclude that State law compels such a provision.

medical care, that failure is unlikely to cause any subsequent injury.12 "[A]lthough an injury might not have occurred 'but for' an antecedent act of the defendant, liability may not be imposed if for example the negligence of one person is merely passive and potential, while the negligence of another is the moving and effective cause of the injury ... or if the injury is so remote in time and space from defendant's original negligence that another's negligence intervenes." Peterson v. Underwood, 258 Md. 9, 16, 264 A.2d 851 (1970).

This principle can be elaborated through example. Suppose that a student obtained birth control pills during school hours from the health department without parental notice or consent and a parent then sought to hold the school liable for the harmful consequences of the student's sexual activities, like infection with a sexually transmitted disease. Or suppose that a parent claimed that the services rendered by the clinic staff were performed negligently. Finally, in a district where official attendance policy requires parental consent for all student absences from school, suppose that a parent sued school officials for negligence after their child was struck by a car while walking to the local health department during school hours.

In none of these examples is proximate cause evident. Most importantly, the failure to inform parents of the clinic visit is not the "direct and continuing cause of the injury." Garbis v. Apatoff, 192 Md. 12, 17, 63 A.2d 307 (1948). In the first example, the student herself made the decision to have sexual contact with an infected individual; she and her parents may have a cause of action against that individual, but the causative link between the school's failure to notify the parents of the student's health department visit and that injury is simply too remote. In the second example, the injury resulted from the actions of health department staff, and any cause of action would be against the clinic and its staff member. In the final example, negligence on the part of the automobile driver is most likely to have been the direct cause of the injury.

12
One can imagine situations in which the area around a school is so dangerous that a school official's decision to allow an unaccompanied student to leave might be viewed as the proximate cause of subsequent injury. But if this extreme situation existed, the problem would arise whatever the student's reason for leaving; a visit to the health department would present no unique question of liability.

In all of these examples, the school's failure was only indirectly linked to the injury, and the injury was in fact caused by an intervening force and was not a foreseeable consequence of failing to inform the parents. Thus, no liability would be incurred by school officials.13

C. Federal Claims

Parents may also seek to assert claims under the federal Constitution pursuant to 42 U.S.C. 1983. However, we believe that such claims will prove unsuccessful in the absence of extraordinary factual circumstances. We recognize that the Supreme Court has determined that the Fourteenth Amendment mandates a degree of "state deference to parental control of children." Bellotti v. Baird, 443 U.S. 622, 637 (1979). Indeed, the Supreme Court relied in part on the constitutional protection of the relationship between parents and children when it upheld a Utah statute requiring physicians to notify the parents of certain minors seeking abortions. H.L. v. Matheson, 450 U.S. 398 (1980). In Matheson, however, the Court stated only that a state may enforce such a statute. The Court did not suggest in Matheson, or in any other of its parental rights decisions, that parental notification is required by the Constitution.

Similarly, we do not believe that schools may be found liable for a tortious violation of constitutionally protected liberty interests for failing to inform parents of students' health department visits. Although the tortious conduct of state officials might in some circumstance reach constitutional proportions, there can be no constitutional violation if the common law elements of the alleged tort cannot be proved. Martinez v. California, 444 U.S. 277, 284-85 (1980). As we have explained in Part IVB above, we do not believe that the failure of school officials to disclose to parents the health department visits of their students generally provides a basis for tort law liability under Maryland law. Furthermore, the Supreme Court has held that "merely negligent" conduct by government actions will not give rise to liability for a constitutional violation. Daniels v. Williams, 474 U.S. 327, 333 (1986). Thus, a claimant must show not only that school officials breached a duty which

13
Furthermore, in the first two examples, it is not clear that notifying the parents of the student's plan would have prevented the injury, since the student has the right under HG §20-102 to receive a range of medical services regardless of parental objections.

resulted in an injury of constitutional proportions but also that their conduct was at least grossly negligent.

Given this standard, the likelihood that a parent might prevail on constitutional claims under the circumstances raised in your questions is remote.

V

Condom Distribution By School Nurses

Your final question asks us to identify the conditions under which school nurses employed by the local health department may distribute condoms to students. For the following reasons, we believe that State law neither prohibits nor compels the distribution of condoms by school nurses. In the absence of a determinative statute or regulation, decisions concerning condom distribution in schools are matters of local concern.

School health services are governed by ED §7-401, which makes each county school board, assisted by the county health department, responsible for providing "[a]dequate school health services" and "[i]nstruction in health education." ED §7-401(a)(1) and (2). ED §7- 401 sets no restrictions on the range of school health services that a county school board may offer, and we therefore find no basis to construe the statute as forbidding the provision of contraceptive services.

Yet we also find no basis for concluding that the statute mandates the distribution of condoms in connection with school health services. Other sections of the Education Article require schools to provide certain discrete services, such as hearing and vision testing, scoliosis screening, and drug education. ED §§7-402, 7-403.1 and §7-409. No comparable provision makes contraceptive services mandatory.

Similarly, State regulations are not determinative of this issue. The bylaw concerning school health services programs, COMAR 13A.05.05.05, generally permits programs for the "[p]revention and control of communicable diseases" and the development of "appropriate attitudes toward sexuality." COMAR 13A.05.05.05C(6) and (1)(d). While these provisions suggest that school health programs may provide services intended to prevent pregnancy and AIDS or other sexually transmitted diseases, the regulations simply do not dictate to local school systems the specific measures that such a program must or may not include. In addition, COMAR 13A.04.01 sets forth detailed standards regarding local family life and human development programs. Although the regulation incorporates community involvement and parental consent requirements, it applies only to the program of instruction, not to the delivery of health services by school health professionals.14

In sum, we conclude that the propriety of condom distribution as part of a school health program is not addressed by State law and therefore may be decided by each local school board.

VI

Conclusion

In summary, it is our opinion that school officials have no general duty to inform parents of the fact of, or the reasons for, a student's visit to the local health department during the school day. Hence, they would not be held liable for their failure to do so. However, this overall conclusion is not intended to rule out the possibility of liability in the following circumstances:
if the school maintains a formal policy of requiring parental consent for all absences from school premises during school hours but informally allows students to leave the school, without parental permission, for medical visits; or
if school staff possess knowledge of unusual circumstances that lead or should lead them to believe that the failure to inform the parents of a student's plan to seek medical services will result in foreseeable harm.

14
It is not entirely clear whether condom distribution is encompassed by HG §20-102(c). Providing someone with a condom is not alone a form of medical treatment. Coupled with counseling, however, condom distribution might well be seen as part of "[t]reatment for or advice about venereal disease [or] pregnancy." HG §20-102(c)(3) and (4). In any event, school nurses are not required to obtain parental consent before distributing condoms to students if a school board authorizes condom distribution.

Finally, it is our opinion that current State law neither bars nor compels the distribution of condoms by school nurses. This matter is left to the discretion of local school officials.

J. Joseph Curran, Jr.
Attorney General

JoAnn G. Goedert
Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice