Untitled Texas Attorney General Opinion ( 1980 )

The Attorney General of Texas
September 24, 1980
MARK WHITE
Attorney General
Honorable John J. Kavanagh, M.D. Opinion No. MW-24 8
Commissioner
Texas Department of Mental Re: Means by which the Depart-
Health & Mental Retardation ment of Mental Health and Mental
P. 0. Box 12668, Capitol Station Retardation can obtain consent for
Austin, Texas 78711 dental treatment of patients or
residents
Dear Mr. Kavanagh:
Your question concerns article 3174b-2, V.T.C.S., which provides, in
pertinent part:
The Board of Texas State Hospitals and Special
Schools. . . shall provide or perform 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 is
requested, and such person or guardian shall fail to
immediately reply thereto, the performance or
provision for the treatment or services shall be
ordered by the superintendent upon the advice and
consent of three (3) medical doctors, at least one of
whom must principally be engaged in the private
practice of medicine. Where there is no guardian or
responsible relative to whom request can be made,
treatment end operation shall be performed on the
advice and consent of three (3) physicians licensed by
the State Board of Medical Examiners.
Acts 1955, 54th Leg., ch. 54, §l, at 86. The Board of Texas State Hospitals
and Special Schools was abolished in 1965 and replaced by the Texas
Department of Mental Health and Mental Retardation. Acts 1965, 59th Leg.,
ch. 67, SSl, 2, at 165. You ask whether article 3174b-2 authorizes a
superintendent of a Department of Mental Health end Mental Retardation
facility to order dental treatment and services for persons committed
thereto upon the advice and consent of three dentists.
In instances where consent to treatment or services is considered
necessary but no guardian or responsible relative of the person committed to
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Honorable John J. Kavanagh - Page Two (MW-248)
the facility exists, article 3174b-2 provides that treatment shall be performed only
upon the advice and consent of three physicians “licensed by the State Board of
Medical Examiners?’ Dentists are not licensed by the State Board of Medical
Examiners, article 4504a, V.T.C.S., but instead are licensed by the State Board of
Dental Examiners. Article 4543, et., V.T.C.S. Accordingly, we conclude that
dentists may not provide the necessary consent to treatment when no guardian or
responsible relative of the person committed to the facility exists.
When the consent of the person committed to the facility or his guardian has
been requested, but no immediate response is forthcoming, article 3174&2 provides
that treatment shall be ordered only with the consent of three “medical doctors, at
least one of whom must principally be engaged in the private practice of medicine.”
The question is whether the legislature, by specifying “medical doctor” in this instance
and “physician licensed by the State Board of Medical Examiners” elsewhere, intended
to distinguish between the two. In other words, may a dentist, although not licensed by
the Board of Medical Examiners, nevertheless qualify as a “medical doctor” and
thereby be eligible to provide consent to treatment or services in this instance? We
think not. Although a plausible argument can be made that the use of different
terminology indicates that “medical doctor” should be interpreted more broadly than
“physician licensed by the State Board of Medical Examiners,” we do not think a court
would bold that the term is broad enough to include dentists, at least for purposes of
article 3174b-2. Physicians end dentists sre governed by different agencies and
regulated by different statutes, and we think this evidences a clear intention to
distinguish between them. Moreover, we can see no reason why dentists should be
eligible to provide consent in this instance when they clearly may not provide consent
when IX) guardian or responsible relative exists. Thus, we conclude that dentists are
not “medical doctors” within the meaning of article 3174b-2, and that they may not
consent to dental treatment under the circumstances described above.
This does not mean that article 3174b-2 renders superintendents powerless to
provide necessary dental treatment to patients and residents of their facilities when
consent to treatment has not or cannot be obtained. To construe article 3174&2 in
such a manner es to prevent treatment from being administered because there is,
effectively, no one to provide consent would be, in our judgment, to reach an unduly
harsh result. Article 3174b-2 directs the Department of Mental Health end Mental
Retardation to “provide or perform recognized medical treatment or services to
persons admitted or committed to its care,” and we think medical treatment
necessarily embraces dental care. See, 3, Little v. Little, 576 S.W.2d 493 (Tex. Civ.
App. - San Antonio 1979, no writr When dental services are deemed necessary,
therefore, it is our opinion that the superintendent may provide such care with the
consent of three physicians licensed by the State Board of Medical Examiners, so long
as the other provisions of article 3174b-2 are met, even though the services themselves
would be performed by dentists.
SUMMARY
Article 3174b-2, V.T.C.S., prohibits dentists from consenting
to dental treatment of persons under the care of a Department
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Honorable John J. Kavanagh - Page Three (NW-248)
of Mental Health and Mental Retardation facility. Dentists
may provide dental treatment or services, however, provided
consent is obtained from three physicians licensed by the State
Board of Medical Examiners end all other conditions of article
3174b-2 are satisfied.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY 111
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
Susan Garrison, Acting Chairman
Jon Bible
Rick Gilpin
Barbara Marquardt
P. 784