Untitled Texas Attorney General Opinion ( 1980 )

The Attorney General of Texas
May 21, 1980
MARK WHITE
Attorney General
Honorable John J. Kavanagh, MD Opinion No. NIV-180
Commissioner
Texas Department of MHMR Re: Voluntary admission of
Box 12668, Capitol Station minors to mental hospitals.
Austin, Texas 78711
Dear Dr. Kavanagh:
You have requested our opinion regarding the voluntary admission of
minors to mental hospitals.
Article 5547, V.T.C.S., provides, in pertinent part:
The application for admission of a person to a mental
hospital as a voluntary patient:
(a) Shall be in ~writing and signed by the voluntary
patient if he is legally of age or by his parent, legal
guardian, or the county judge, with his consent, if he
is not legally of age.
The Department of Mental Health & Mental Retardation has for many years
interpreted this provision to require the consent of a minor for voluntary
admission. See also Rosenthal, Interpretation of the Mental Health Code
(5th ed. 1976)mou ask whether it can be construed so as to require the
minor’s consent only when he is admitted upon application of the county
judge.
Since the language of the statute is ambiguous, the lon@anding
construction placed upon it by the Department is entitled to substantial
weight. Cm 427 S.W.2d 605, 608 (Tex. 1968); Heaton v.
Bristol, 317 S.W.Zd 86, 95 (Tex. Civ. App. - Waco 19581, cert. denied, 359
U.S. 230 0959); Associated Indemnity Corp. v. Oil Well Drilling Co. 258
S.W.%d 523, 529 (Tex. Civ. App. - Dallas 19531, aff’d, 264 S.W.2d 697 Tex.
1954). The legislature, which must be presumednave been aware of the
Department’s interpretation, has not amended the statute since 1957. Under
these circumstances, we believe that the Department of Mental Health &
Mental Retardation should continue to require the consent of a minor for
voluntary admission to a facility of the Department.
P. 572
Honorable John J. Kavanagh, M.D. - Page Two (NW-180)
You also ask whether there is an age below which a person cannot give consent under
article 5547-23, V.T.C.S. The statute itself imposes no minimum age, and, were we to
hold that the age of consent is the same as for purposes of contract, no minor could ever
be admitted to a mental hospital as a voluntary patient, and part of the statute would be
rendered meaningless. It seems likely that the legislature did not here intend to impose
the technical meaning of contractual consent. See Austin v. Collins, 200 S.W.2d 666 (Tex.
Civ. App. - Fort Worth 1947, writ ref’d n.r.e.1. x minimum age can be inferred from the
statute. We believe the professionals at the hospital must make a determination, just as
they do with adults, whether the child has sufficient competency and maturity to give
effective consent. If the professionals are not convinced that the particular child has the
ability to give consent, they should seek an involuntary commitment throlrgh the courts.
The statute does not require that the minor’s consent be in writing, however. The
application must be in writing and it must be si ed by the minor’s parent a legal
guardian or by the county judge. The minor’s in+=-
ormed consent must be obtained, but
there is nothing in the statute to require that such consent be given in writing.
Finally, you ask about the effect of Parham v. J.R., 61 L. Ed. 2d 101 (l979), on the
Department’s voluntary admissions policy. In Parham, s_~lpra,the Supreme Court upheld a
Georgia statute which permitted a child to be admitted to a state mental health care
facility without his consent, upon the application of his parents. The court based its
decision upon the “traditional presumption that the parents act in the best interests of
their child,” and found the Georgia procedure acceptable, so long as a physician%
“independent examination and medical judgment” is interposed in the process.
Clearly, the Supreme Court in Parham w was considering cmly the minimum
constitutional standards required for the admissmn of a minor to a mental health care
facility. Since the Department of Mental Health & Mental Retardation has long construed
article 5547..23, V.T.C.S., to require a stricter standard - the consent of the minor as
well as that of his parents - Parham has little relevance for the Texas admissions
procedure.
SUMMARY
A minor may be admitted to a mental hospital as a voluntary
patient only with his informed consent.
gii$gQdf
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
P. 573
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Honorable John J. Kavanagh, M.D. - Page Three (NW-180)
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
C. Robert Heath, Chairman
Susan Garrison
Rick Gilpin
Bruce Youngblood
P. 574