TEXAS - CONSENT ISSUES

January 1, 2008

State laws and regulations that affect your medical practice

1. What are the requirements for parental consent in the case of the treatment of minors?

No parental consent is required for the following minors for medical, dental, psychological and surgical treatment if the minor:

(1) Is on active duty with the armed services of the United States of America;

(A) 16 years of age or older and resides separate and apart from the child's parents, managing conservator, or guardian, with or without the consent of the parents, managing conservator, or guardian and regardless of the duration of the residence; and

(B) managing the child's own financial affairs, regardless of the source of the income;

(3) Consents to the diagnosis and treatment of an infectious, contagious, or communicable disease that is required by law or a rule to be reported by the licensed physician or dentist to a local health officer of the Texas Department of Health, including all diseases within the scope of the Health and Safety Code;

(4) Is unmarried and pregnant and consents to hospital, medical, or surgical treatment, other than abortion, related to the pregnancy;

(5) Consents to examination and treatment for drug or chemical addiction, drug or chemical dependency, or any other condition directly related to drug or chemical use; or

(6) Is unmarried, is the parent of a child, and has actual custody of his or her child and consents to medical, dental, psychological, or surgical treatment for the child.

V.T.S.C.A. § 32.003

2. Who may consent to medical treatment of a child when the person having the right to consent cannot be contacted and that person has not given actual notice to the contrary?

(1) A grandparent of the child;

(2) An adult brother or sister of the child;

(3) An adult aunt or uncle of the child;

(4) An educational institution in which the child is enrolled that has received written authorization to consent from a person having the right to consent;

(5) An adult who has actual care, control, and possession of the child and has written authorization to consent from a person having the right to consent;

(6) A court having jurisdiction over a suit affecting the parent-child relationship of which the child is the subject;

(7) An adult responsible for the actual care, control, and possession of a child under the jurisdiction of a juvenile court or committed by a juvenile court to the care of an agency of the state or county; or

(8) A peace officer who has lawfully taken custody of a minor, if the peace officer has reasonable grounds to believe the minor is in need of immediate medical treatment.

V.T.S.C.A. § 32.001

3. What are the consent requirements for psychological counseling for minors?

(1) No parental consent is required if a minor seeks counseling for:

(A) Suicide prevention;

(B) Chemical addiction or dependency; or

(C) Sexual, physical or emotional abuse.

V.T.S,C.A. § 32.004

(2) A licensed or certified physician, psychologist, counselor, or social worker 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 may:

(A) Counsel the child without the consent of the child's parents;

(B) With or without the consent of the child who is a client, advise the child's parents;

(C) 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.

V.T.S.C.A. § 32.004

4. What are the consent requirements if a health care provider suspects abuse or neglect?

(1) A health care provider 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 or the child's parents.

(2) An examination under this section may include X-rays, blood tests, photographs, and penetration of tissue necessary to accomplish these tests.

(3) A health care provider may not examine a child without consent if the child is 16 years of age or older and refuses consent or consent is prohibited by a court order.

V.T.S.C.A. § 32.005

5. What are the parental notice requirements for termination of pregnancy of an unemancipated minor?

(1) A physician may not perform an abortion on a pregnant, unemancipated minor unless:

(A) The physician performing the abortion gives at least 48 hours actual notice, in person or by telephone, to a parent of the minor or a court-appointed guardian;

(B) The judge of a court issues an order authorizing the minor to consent to the abortion;

(C) The court, by its inaction, constructively authorizes the minor to consent; or

(D) The physician performing the abortion concludes that a condition exists that necessitates the immediate abortion of her pregnancy to avert her death or avoid serious risk of harm.

(2) Constructive notice may be given if a parent is unable to be located through 48 hours notice by certified mail, restricted delivery, sent to the last known address.

V.T.S.C.A. § 33.002

(3) If a minor wishes to have an abortion without notification to her parents, she may file an application for a court order authorizing the minor to consent to the performance of an abortion without notification to either of her parents.

V.T.S.C.A. § 33.003

2. For purposes of obtaining informed consent, when is a minor considered emancipated?

Emancipation is an act by which a parent relinquishes the right to custody and is relieved of the duty to support the child. Generally, emancipation can occur upon a child's marriage, induction into the military service, by court order based on the child's best interests, or by the attainment of the appropriate age. Attaining the age of majority, which is 18 years of age in Texas, is evidence of emancipation. However, under Texas law, there is no fixed age when emancipation occurs; it does not occur automatically on reaching age of majority.

3. What is informed consent and when should it be obtained?

Generally, informed consent is given by a patient to a physician who has informed the patient of the following:

A. The illness;

B. The treatment, including the risks and any side-effects;

C. Treatment alternatives; and

D. Likelihood of success.

Informed consent is a means to ensure that a patient is educated and informed about the decisions the patient is making regarding his or her treatment. Thus, the consent given should reflect the understanding the patient has concerning his or her own well-being. Further, informed consent is also a means to safe-guard against physicians who may otherwise be accused of substituting their judgment for that of their patient, perhaps in the interests of time and efficiency.

4. Should a physician have a standard written form to fulfill all informed consent requirements?

No. Generally, it would not be advisable to have a standard written form to address blanket issues. Written informed consent, specific to certain patients and their circumstances, is recommended. It is always important that patients be informed of their situation, their condition, their options and their alternatives as that is the purpose of informed consent. Any conversations which address these issues should also be documented within the patient's medical records.

5. What obligations does a physician have if a patient refuses to consent to treatment based on religious grounds?

Texas recognizes situations where significant state interests may supersede the individual's right to free choice. In case of patients who are minors, the state's interest in the welfare of the child may also be compelling.

In the case of an adult patient, objections from the patient or the patient's family are usually weighed by examining such factors as the probable outcome of the treatment to restore the patient to normal life or to prolong a patient's life at a lower level of subsistence; the age of the patient; and the patient's level of competence or understanding.

In the case of minor patients, the courts have held that "a parent's right to control his or her child is limited even when the parent bases the claim on religion or conscience." (Prince v. Massachusetts, 321 U.S. 158 (1944)). Texas has held that the state, acting as parens patriae, guards the well-being of minors, even where doing so requires limiting the freedom and authority of parents over their children. HCA, Inc. v. Miller ex rel. Miller, 36 S.W. 3d 187, 194 (2000).

Obligations of a physicians are then based upon whether the patient is an adult or minor, whether the treatment is likely to require a blood transfusion and the necessity of a court order. Upon informed consent, the physician should discuss all possibilities with the patient or adult guardian(s) of the patient including the risks involved, the likelihood of necessity of a blood transfusion and whether the physician can perform the treatment within the limits defined by the patient or adult guardian of the patient.

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.