Consent for Treatment of Minors

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1 Document #0001-LD/LS VISION: To improve the health of all Texans. MISSION: TMA supports Texas physicians by providing distinctive solutions to the challenges they encounter in the care of patients. TMA Office of the General Counsel Consent for Treatment of Minors July 2009 Minor Consent Generally A "minor" is a person under 18 years of age who has never been married and never been declared an adult by a court. 1 Generally, minors do not have the legal capacity to consent to medical treatment. However, there are a number of exceptions to this rule, which will be discussed in further detail. Texas law gives all parents the duty of providing medical and dental care to their children, and therefore, gives them the explicit right to consent to that treatment (including medical, dental, psychiatric, psychological and surgical treatment). 2 Thus, as a general rule, if a minor requires medical attention, a Texas physician should obtain the consent of one of the child's parents. Accordingly, this duty includes the right to access the child s medical records. 3 The duty to provide treatment and the right to consent to treatment logically imply the right to access to information necessary to make treatment decisions. For more information on access to medical records please see TMA s whitepaper entitled Release of Medical Records. Parental Consent in Cases of Divorce The Texas Family Code provides that, unless limited by a court order, a parent appointed as a "conservator" (managing or possessory) of a child has at all times the following rights: 1 See, Tex. Fam. Code and Tex. Fam. Code (a). 3 Tex. Fam. Code (a)(3)

2 The right of access to medical, dental, psychological, and educational records of the child, and The right to consult with a physician, dentist, or psychologist of the child, and The right to be designated on the child's records as a person to be notified in case of an emergency, and The right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child. 4 When a parent is appointed "sole managing conservator" (the modern term for a custodial parent), they have all the rights listed immediately above, and the right to consent to medical, dental, and surgical treatment involving invasive procedures, and the right to consent to psychological or psychiatric treatment of a child, unless limited by a court order. 5 If a divorced parent does not have custody of a child, that parent is considered the possessory conservator (the modern term for a non- custodial parent). 6 During the period that parent has possession of the child, a possessory conservator has the rights listed above, and the duty to provide medical and dental care not involving invasive procedures, unless limited by a court order. 7 To be clear, a "managing conservator" has 1) the right of access to records, 2) the right to consult with a physician, and 3) the right to consent to all medical, dental, psychological, psychiatric and surgical treatments. 8 On the other hand, a "possessory conservator" has 1) the right of access to records, 2) the right to consult with a physician, and 3) the right to consent to medical and dental care not involving an invasive procedure. 9 It should be noted that the law contains a preference that "both parents shall be appointed as joint managing conservators of the child, unless the court finds that appointment of a parent would not be in the best interest of the child. 10 The court granting the divorce may allocate the rights and duties of the joint managing conservators. Thus, both may have the right to consent to invasive procedures, or only one may have that right. Ask to see a copy of the court order to remove doubt. Both joint managing conservators have access to the child's medical records unless specifically limited by the court granting the divorce. 11 In regard to the payment for medical services, the law places a duty upon parents to support the child, including providing the child with clothing, food, shelter, medical and 4 Tex. Fam. Code (a). 5 Tex. Fam. Code Tex. Fam. Code Tex. Fam. Code Tex. Fam. Code Tex. Fam. Code Tex. Fam. Code Tex. Occ. Code ; Tex. Fam. Code

3 dental care, and education. 12 However, this is only a general rule. The law continues to state that the rights and duties of a parent are subject to a court order affecting the rights and duties. 13 This means the court granting the divorce may allocate the duties of the joint managing conservators. Ask to see a copy of the court order to remove doubt. This is especially important as collection practices are closely regulated and improperly seeking recovery through collection actions may be subject to damages under fair debt collection laws. Emergency Circumstances Texas law does not require consent in emergency circumstances where it is not possible to obtain consent from the parent, guardian, or conservator. 14 The statutes states, "consent for emergency care for an individual is not required if the individual is a minor who is suffering from what reasonably appears to be life-threatening injury or illness and whose parents, managing or possessory conservator, or guardian, is not present." 15 Naturally, the appropriate staff should continue efforts to notify a parent and secure consent for continuing treatment. Every physician who regularly treats children, as well as every hospital administrator and emergency room physician should be aware of these laws. Obtaining Consent In circumstances where a parent cannot be located, there are exceptions to the rule that only parents may consent to their children's medical treatment. The Texas Family Code lists other persons (and "entities") who may consent for medical treatment of children. For example, a 1) grandparent, 2) adult brother or sister, 3) adult aunt or uncle, 4) any education institution in which the minor is enrolled and has written authorization from persons having power to consent, and 5) any adult who has actual care, control, and possession of the minor and has written authorization to consent from the parent - may consent to medical treatment of a minor when the person having the power to consent cannot be contacted and actual notice to the contrary has not been given. 16 Thus, if a non-parent brings a child to a physician's office, a non-parent may be able to consent to the medical treatment of the child, depending on their relationship. The Family Code specifies that when a non-parent gives consent for treatment, the consent must: Be in writing, Include the name of the child, Include the name of one or both parents, if known, and the name of any managing conservator of the child, Include the name of the person giving consent and their relationship to the child, Include a statement of the nature of the medical treatment to be given, and 12 Tex. Fam. Code Tex. Fam. Code (d). 14 Tex. Health and Safety Code (3) 15 Tex. Health and Safety Code (3). 16 Tex. Fam. Code (a).

4 The date the treatment is to begin. 17 Consent by Minor There are seven general circumstances under which a minor can consent to his or her own treatment pursuant to Texas state law. The Texas Family Code lists instances where a minor child can consent to certain types of medical treatment on their own. This list is as follows: A minor on active duty with the armed forces of the United States can consent to medical treatment. A minor who is 16 years of age or older, resided apart from his or her parents or guardian, and manages his or her own financial affairs, regardless of the source of income, can consent to medical treatment. A minor can consent to diagnosis and treatment of any infectious, contagious or communicable disease which is reportable to the Texas Department of State Health Services. A minor who is unmarried and pregnant can consent to treatment of pregnancy other than abortion. A minor can consent to examination and treatment for addiction, dependency, or any other condition related directly to drug or chemical use. A minor who is unmarried, is the parent of a child, has actual custody of his or her child and consents to the medical, dental, psychological, or surgical care for the child may consent to his or her own treatment. A minor who is serving a term of confinement in a facility operated by or under contract with the Texas Department of Criminal Justice may consent to his or her own treatment. 18 In regard to these exceptions, the physician may rely upon the written statement of the minor containing grounds on which the minor has capacity to consent to his or her own treatment. 19 Retention of these written statements is a prudent risk management technique. Note that the Texas Family Code does not appear to give minors the right to consent to contraceptives or other prescription birth control devices. Thus, a parent s consent is necessary and is legally binding. In those circumstances where the minor objects, the parent s decision is also likely sufficient. 20 However, physician ethics may play a role 17 Tex. Fam. Code Tex. Fam. Code Tex. Fam. Code (f). 20 There have been challenges to parental decisions regarding reproductive rights. For instance, in the 1995 case Powers v. Floyd, (904 S.W.2d 713), a young woman alleged that a physician performed abortion on her in 1974, while patient was minor, without obtaining her informed consent but instead relied upon the parent s informed consent. The court ruled that the physician was

5 and a physician may consider checking with their specialty society for any relevant ethics opinions where a minor objects to treatment. 21 If a physician concludes that he or she does not want to continue in the professional relationship, close adherence to laws regarding termination and abandonment must be followed. Minor Consent to Counseling A minor may consent to counseling for a limited number of mental health issues. Those circumstances are: suicide prevention; chemical addiction or dependency; or sexual, physical, or emotional abuse. 22. Unless limited by court order, 23 a physician having reasonable grounds to believe that a child has been sexually, physically, or emotionally abused, is contemplating suicide, or is suffering from a chemical or drug addiction or dependency is expressly permitted under the law to counsel the child without the consent of the child's parents or, if applicable, managing conservator or guardian. 24 However, physicians should note that the law, merely because the child is consenting, does not prevent the parent or guardian from accessing medical information. The law states that the physician may with or without the consent of the child who is a client, advise the child's parents or, if applicable, managing conservator or guardian of the treatment given to or needed by the child. 25 Just as under the general exceptions permitting a minor to consent to treatment, the physician is entitled to rely on the written statement of the child containing the grounds on which the child has capacity to consent to the child's own treatment under this section. However, a parent, or, if applicable, managing conservator or guardian, who has not consented to counseling treatment of the child is not obligated to compensate a physician worker for counseling services. 26 Examination for Abuse or Neglect The law with respect to consent and suspected neglect is very specific. To avoid any misunderstanding the actual provision is provided below. Texas Family Code Sec states: EXAMINATION WITHOUT CONSENT OF ABUSE OR NEGLECT OF CHILD. (a) Except as provided by Subsection (c), a entitled to rely on the parent s consent. This illustrates that these issues may always be subject to judicial review and are certain only after court decision. 21 Readers should keep in mind that ethics opinions do not preempt the operation of law, even where that law compels actions contrary to ethics. 22 Tex. Fam. Code (a). 23 Tex. Fam. Code (c). 24 Tex. Fam. Code (b). 25 Id. 26 Tex. Fam. Code (e).

6 physician, dentist, or psychologist having reasonable grounds to believe that a child's physical or mental condition has been adversely affected by abuse or neglect may examine the child without the consent of the child, the child's parents, or other person authorized to consent to treatment under this subchapter. (b) An examination under this section may include X-rays, blood tests, photographs, and penetration of tissue necessary to accomplish those tests. (c) Unless consent is obtained as otherwise allowed by law, a physician, dentist, or psychologist may not examine a child: (1) 16 years of age or older who refuses to consent; or (2) for whom consent is prohibited by a court order. (d) A physician, dentist, or psychologist examining a child under this section is not liable for damages except for damages resulting from the physician's or dentist's negligence. Minor Consent - Abortion and Sterilization Generally, a physician may not perform an abortion on an unemancipated minor without the written consent of her parent, managing conservator, or legal guardian. 27 A pregnant minor who wishes to obtain an abortion without the consent of a parent, managing conservator, or legal guardian may file for an application for a court order authorizing the minor to consent to an abortion without parental notification. 28 If court grants the application, the minor has received a judicial bypass and an abortion can be performed without the consent of a parent, managing conservator, or legal guardian. A minor may also obtain an abortion without consent if she has had her disabilities of minority removed by the court or is married. 29 This is an emotionally charged issue and the legal situations that may arise are also polarizing. Seeking advice from your retained legal counsel is prudent when addressing these consent issues. Reproductive rights in general have been accorded a special status in recent years [by courts and legislatures]. 30 Furthermore, the United States Supreme Court has described procreation as a basic civil right of man. 31 Minors may not consent to sterilization procedures. 32 The Centers for Medicaid and Medicare Services (CMS) require that special guidelines be followed for sterilization patients who intend to claim reimbursement for the procedure under the Medicaid program. But in any event, the federal government also requires the patient be at least 21 years of age. 33 When you are addressing sterilization of minors or other incapacitated people, it is very prudent to obtain advice from retained legal counsel. 27 Tex. Occ. Code (a)(19). 28 Tex. Fam. Code (a) 29 Tex. Fam. Code (5) 30 Elizabeth S. Scott, Sterilization of Mentally Retarded Persons: Reproductive Rights and Family Privacy, 1986 Duke L.J. 806, (1986). 31 Id. 32 Ramona Freeman John, Children and the Law in Texas, University of Texas Press, pg 160 (1999). 33 See, Department of Health and Human Services Form HHS-687, Consent for Sterilization.

7 Consent to Immunize Minors The state has a strong public policy interest in encouraging immunization of minors. Accordingly, the list of persons who can consent to immunization is expansive. Any of the following persons may consent to immunization of a child if a parent, managing conservator, or guardian is not available. Grandparents, Adult brother or sister, Adult aunt or uncle, Stepparent of the child, Any educational institution in which the minor is enrolled and has written authorization from persons having power to consent, Another adult who has actual care, control and possession of the minor and has written authorization from the parent or other person authorized to consent, A court that has jurisdiction over the child while a divorce or other custodytype suit is pending, Another adult who is the child's primary care giver and has written authorization from the parent or other person authorized to consent. In addition, a person who may consent to immunization of a child may delegate that authority to the child's grandparents, adult brother or sister, adult aunt or uncle, stepparent, or another adult who has actual care, control and possession of the child. 34 Unfortunately, the phrase is not available" is not expressly defined in the law and replaced the phrase cannot be located. The law previously clearly stated that a parent cannot be located for consent to immunize if: a. The parent s location is unknown; b. The practice made a reasonable effort to locate them in the last 90 days; or c. The person who can consent has been contacted and 1. refuses to testify; and 2. does not expressly deny consent for immunization. 35 However, since these elements have been removed from the law, there is disagreement on whether it can be interpreted to allow for a much more broad definition so that the common sense meaning of the phrase is not available may be used. It is possible that an absolute definition may be used and the parent must literally not be available (by telephone, , or otherwise). 34 Tex. Fam. Code (b). 35 Former Tex. Fam. Code (e)

8 TMA Policy ABORTION. Policies covering abortions should be designed by medical staffs to safeguard the patient's health or improve her family life situation. They should have due regard for local legal statutes and judicial decrees. Abortion should only be performed in facilities that are properly supervised by a physician, and with hospital facilities available if needed. It is recognized that abortion may be performed at a patient's request, or upon a physician's recommendation. No physician should be required to perform, nor should any patient be forced to accept, an abortion. Neither physician, hospital, nor hospital personnel shall be required to perform any act violative of good medical judgment or personally held moral principles. When abortion is requested by a patient, the patient should be informed of the medical nature of the procedure and of its potential consequences, and the operative consent should be obtained in writing from the patient, or when appropriate, from the parent or guardian of a minor patient. When abortion is recommended by a physician, the indications should be stated in the patient's record, and informed consent obtained. When abortion is recommended by a physician, the indication for the procedure should be approved by a consultant knowledgeable in regard to the condition thought to indicate abortion. Abortion is an operative procedure and should only be performed: (1) by a physician licensed to practice medicine and surgery in the State of Texas; and (2) in pregnancies beyond the first trimester, in a hospital adequately equipped to care properly for unexpected complications NOTICE: This information is provided as a commentary on legal issues and is not intended to provide advice on any specific legal matter. This information should NOT be considered legal advice and receipt of it does not create an attorney-client relationship. This is not a substitute for the advice of an attorney. The Office of the General Counsel of the Texas Medical Association provides this information with the express understanding that 1) no attorney-client relationship exists, 2) neither TMA nor its attorneys are engaged in providing legal advice and 3) that the information is of a general character. Although TMA has attempted to present materials that are accurate and useful, some material may be outdated and TMA shall not be liable to anyone for any inaccuracy, error or omission, regardless of cause, or for any damages resulting therefrom. Any legal forms are only provided for the use of physicians in consultation with their attorneys. You should not rely on this information when dealing with personal legal matters; rather legal advice from retained legal counsel should be sought.