Sources: TMLT FAQs-Minors and Texas Statutes-Family Code 101.003
Who is considered a minor?
A minor is a person under 18 years of age who has never been married and has never been declared an adult by a court. Generally, minors do not have the legal capacity to consent to medical treatment.
The Texas Statutes Family Code 151.001 (a) gives all parents the duty of providing medical and dental care to their children, which gives them explicit right to consent to that treatment, which includes medical, dental, psychiatric, psychological, and surgical treatment.
When can minors consent to their own medical treatment?
The Texas Statutes-Family Code describes situations when a minor child can consent to his/her own medical treatment:
- A minor on active duty with the armed forces of the United States.
- A minor who is 16 years or older, residing apart from his/her parents or guardian, and managing his/her own financial affairs.
- A minor who is unmarried and pregnant can consent to treatment related to the pregnancy other than abortion.
- A minor can consent to diagnosis and treatment of infectious, contagious, or communicable diseases that are reportable to the Texas Department of State Health Services.
- A minor can consent to counseling for suicide prevention, chemical or alcohol addiction or dependency, or sexual, physicial, or emotional abuse.
A physician may rely on a written statement by the minor containing the grounds on which the minor has capacity to consent to treatment.
Parental Consent in Cases of Divorce
If in doubt, a physician should always ask to see a copy of the court order.
According to Texas Statutes Family Code 153.073 (a), 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:
- Right of access to medical, dental, psychological, and education records of the child.
- Right to consult with a physician, dentist, or psychologist of the child.
- Right to be designate on the child's records as a person to be notified in case of an emergency.
- Right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child.
Specific rights for a divorced parent who has custody of child
The Texas Statutes Family Code 153.132 states a "sole managing conservator" (custodial parent) has all the rights listed above in §153.073, AND the right to consent to medical treatment involving invasive procedure, and the right to consent to psychological or psychiatric treatment of a child, unless limited by a court order.
Specific rights for a divorced parent who does NOT have custody of a child
The Texas Statutes Family Code 153.074 states that a "possessory conservator" (non-custodial parent) has the rights listed above in §153.073, AND the duty to provide only medical and dental care not involving invasive procedures, unless limited by a court order.
Non-parent consent to treatment of a child
Divorced parents who have joint custody over a child may both serve as "joint managing conservators" and have all the rights associated with a "managing conservator" unless specifically limited by the court granting the divorce.
If parents are not available to consent to their child's medical treatment and/or immunizations, the Texas Statutes Family Code 32.001 lists other persons who may consent for medical treatment of a child:
- adult siblings
- aunts and uncles
- an educational institution with written authorization
- any adult who has actual care, control, and possession of the minor with written authorization
- a court having jurisdiction over a suit affecting the parent-child relationship
- 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
- a peace officer who has lawfully taken custody and has reasonable grounds to believe immediate medical treatment is needed
- for immunizations only, a guardian or any person authorized under law or court order to consent for the child, or if these persons are not available, any one of the persons listed above.
Consent form for a non-parent to give consent for treatment must:
- Be done in writing by parent,
- 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
- The date the treatment is to begin.
What is the physician's legal obligation when treating minors for contraception and pregnancy?
Minors cannot give consent to medical treatment. Contraception is not specifically addressed by law as an exception, and is therefore not a treatment for which a minor can give consent unless he or she is an "emancipated minor." An emancipated minor is one who is not 18 years, unmarried, and has not had the disabilities of minority according to the Texas Statutes Family Code Chapter 31.
Emergency Care for treating minors
The Texas Statutes Health & Safety Code Chapter 773.008 states that a consent 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."