Untitled Texas Attorney General Opinion ( 1967 )

. 1 October 25, 1967 Dr. John Klnross-Wrlght Opinion No. M-152, Commissioner Texas Department of Mental Re: Whether, by virtue of Article Health and Mental Retardation 317&b-2, Vernon's Civil Stat- Box S, Capitol Station utes, Article 3871b, Vernon's Austin, Texas . ~Clvll Statutes, and the Texas 'Mental Health Code (Articles :5547-l, et seq., Vernon's Civil Statutes), the Depart- ment of Mental Health and Mental Retardation has the duty and authority to pro- vide necessary medical treat- ment or services to persons admitted or committed, wlth- out anyone else's consent, Dear Dr. Klnross-Wright:' And related question. In your request for an opinion from this office you state the following: "Frequently, a mentally retarded persbn at one.of our special schools or.8 patient at one, of our mental hospitals who I@.ment&lly lncom- petent will have a medical problem which needs Immediate attention such as the recent case of a mentally retarded pekon at on6 of our State schools whose jaw became swollen and obviously u.lt6painful. This person was a hyperactive 4highly excitable) young female whose natural parents:~couldnot be reached because Chey were out of the country. Viewed as an emergency ln- volving possible lqse of life, this person was phgs.lcallyrestrained, given sedation so that the necessary examination could be made and abscessed teeth were abstracted. . "It seems fattilybbvloue that many If not most of the duties and obligations of such a -704- . . Dr. John Kinross-Wright, page 2 (M-152) parent, spouse or guardian in . regard _ , to care, .. . custody and control of the stuoent or patlent c are relinquished and vested in the Department of Mental Health and Mental Retardation by vlr-, tue of Article 3871b, V.C.S., known as 'The Mentally Retarded Persons Act', as amended by Chapter 255, page 567 of the Acts of the 60th Legislature, Regular Session, 1967, and by the Texas Mental Health Code, codified in Article 5547-1, et seq., V.A.C.S. "The 54th Legislature In 1955, approximately one month before passing 'The Mentally Retarded Persons Act', passed an Act relating to 'Medical treatment and services in State Hospitals and Special Schools', codified as Article 317&b-2, V.C.S. The preamble of public policy in this act of the Legislature reflected the desirability of prompt medical treatment in the State lnstitu- tions listed, but it does not appear to intend to make authorizations from parents, spouses or guardians mandatory but merely provided an alternative consent procedure if such consent was considered necessary. "Article 5547-70 requires the head of a mental hospital to provide adequate medical and ~psychlatric care and treatment for every patient in accordance with the highest standards of med- ical practice and Article 3871b requires the Board (now the De artment of Mental Health and Mental RetardationP to designate the institution in which any mentally retarded person under Its jurisdlctl.on is placed, and may designate any lnstitution,or part thereof under Its management and control as a special facility for the dlagnoslis,special training, education, supervision, treatwent, care or control of mentally retarded persons. You request our opinion on the followlng,questlons. 1. Whether the Department of Mental Health and Mental Retardation has the duty and authority without the consent of anyone to provide necessary ,medlcal treatment services to persons admitted or committed to them under authority of: (a) Article 3871b, V.C.S., and/or (b) Texas Mental Health Code (Article 5547-l et seq.)? -705- Dr. John Klnross-Wright, page 3 (M-152) 2. If others must consent before neces- sary medical treatment services may be given, please indicate whose consent Is necessary In each class of persons? The Mentally Retarded Persons Act Is contained In Article 8871b, Revised Civil Statutes of Texas. Section 13 of that Act provides that the Board shall establish and maintain diagnostic centers in its own Institutions and may, If It desires and the diagnosis warrants, Inform the parents, or spouse, or guardian, or responsible relat-lveof the Inmate of the results of the examination and any recommendations of the staff conducting the examination and rendering the diagnosis. Article 5547-1, et seq., Vernon's Civil Statutes, con- tains the provisions relative to the Texas Mental Health Code. Section 70 of that Act expressly provides that the head of a mental hospital shall provide adequate medical and psychiatric care and treatment for every patient In accordance with the highest standards accepted in medical practice. Article 317413-2,Vernon's Civil Statutes, which gives the Board power to provide medical treatment and services wlth- out the consent of relatives, etc., provides as follows: "The Board for Texas State Hospitals and Special Schools, directly or through Its au- thorized agent or agents, shall provide or per- form recognized medical treatment or services to persons admitted or committed to Its care. Where the consent of any person or guardian is considered necessary, and 1s requested, and such person or guardian shall fail to Immediately re- ply thereto, the performance or provision for the treatment or services shall be ordered by the ,superlntendentupon the advice and consent of three (3) medical doctors, at least one of whom must principally be engaged in the private prac- tice of medicine. Where there is no guardian or responsible relative to whom request can be made, treatment and operation shall be performed on the advice'and consent of three (3) physicians licensed by the State Board of Medical Examiners. This authority shall not allow the performance of any operation Involving sexual sterillzatlon or frontal lobotomies." -706- Dr.., John Klnross-Wright, page 4 (M-152) The Preamble of Public Policy for said Article 317&b-2 states the following: "It Is the sense of the Legislature that laws are insufficient or nonexistent which regulate the duties of the Board for Texas State Hospitals and Special Schools with respect to the performance of op'erations,surgery, and treatment of persons committed to the care of s ch Board; and that this condition causes undue i nd harmful delay, while the consent of such perions is being secured for such purposes, to the detriment of health and impairment of life of persons being treated in hospitals controlled by the Board for Texas State Hospitals and Special Schools; and that It would be advantageous to have speclflc authority to perform such services." The Title of the above described Act provides that It Is for the purpose of permitting the Board of Texas State Hos- pitals and Special Schools to provide or perform necessary treat- ment and medical services to persons admitted or committed to Its care without the consent of responsible relatives or guardians In certain cases. In 1965 the State Board for Texas Hospitals and Special Schools was abolished when the Legislature enacted the Texas Mental Health and Mental Retardatl~onAct, codified as Article 5547-201 to 5547-204, Vernon's Civil Statutes, which created the Texas Department of Mental Health and Mental'Retardation and gave It the exclusive management and control of State hospitals and schools. It is the opinion of this department that, if feasible, It would be the better practice for the Board to obtain the permiss;ionof the spouse, parents, relative or guardian; however, such consent Is not required If the procedure set out in said Article 3i74b-2, Vernon's Civil Statutes, Is followed. SUMMARY Under the provisions of Article 317&b-2, Vernon's Civil Statutes, 3871b, Vernon's Civil Statutes, and the Texas Mental Health Code (Artl- cle 5547-1, et seq., Vernon's Civil Statutes), the Department of Mental Health and Mental Re- tardation has the duty and authority to provide -707- Dr. John Klnross-Wright, page 5 (M-152) necessary medical treatment or serv,$cesto 'per- sons admitted or committed without obtaining anyone else's consent. Prepared by Jack Sparks Assistant Attorney General APPROVED: OPINION COMMITTEE Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman W. V. Geppert Malcolm Quick James Broadhurst Roger Tyler A. J. CARUBBI, JR. Staff Legal Assistant -708-