• Treatment of a Minor

    Unless limited by court order, parents have the rights and duties to provide for their minor child, including providing the child with medical care. However, situations can arise when it is difficult for a physician to determine when care can be given. Below is guidance from the TMA, TMLT and links to some Texas statutes.

     

    TMA Guidance

    The Texas Medical Association (TMA) whitepaper Consent for Treatment of Minors provides guidance, including situations involving examination for abuse and neglect, consent for counseling, immunization or sterilization, and more. 

     

    Rights of a Minor

    Who is considered a minor?

    The Texas Statutes Family Code 101.003 defines a Child or Minor:
    A child or minor means a person under 18 years of age who is or has not been married or has not had the disabilities of minority removed for general purposes.

    When can minors consent to their own medical treatment?

    Generally, minors do not have the legal capacity to consent to medical treatment; however, Texas Statutes Family Code Chapter 31 identifies an exception when the minor has petitioned to have the "disabilities of minority" removed.

    A physician may rely on a written statement of the child containing the grounds on which the child has capacity to consent to his/her medical treatment. That written statement should be retained in the patient's file.

    The Texas Statutes Family Code 32.003 Consent to Treatment by Child states:
    A child may consent to medical, dental, psychological, and surgical treatment if the child:
    – (1) is on active duty with the US armed forces;
    – (2) is (a) 16 years of age or older and resides separate and apart from the child's parents, managing conservator, or guardian, with or without consent... and regardless of the duration of the residence; and (b) managing the child's own financial affairs, regardless 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 to a local or state health department, including all diseases in Section 81.041, Health and Safety Code;
    – (4) is unmarried and pregnant and consents to hospital, medical or surgical treatment related to the pregnancy, other than abortion;
    – (5) consents to examination and treatment for drug or chemical addiction or dependency, or any other condition directly related to drug or chemical use;
    – (6) is unmarried, is the parent of a child, and has actual custody of the child and consents to medical, dental, psychological, or surgical treatment for the child; or
    – (7) is serving a term of confinement with the TX Dept of Criminal Justice, unless the treatment would constitute a prohibited practice. Refer to Section 164.052(a)(19), Occupations Code regarding performing an an abortion.
    – (8) A child may consent to counseling for suicide prevention, chemical addiction or dependency, or sexual, physical, or emotional abuse. Refer to Code 32.004 for the complete statute.

    Examination for Abuse or Neglect

    The law with respect to consent and suspected abuse or neglect is very specific. Code 32.005 defines when a physician may perform an "examination without consent of abuse or neglect of child."

    However, a minor's ability to consent to treatment may not preclude a parent's access to any related medical records.

    A minor being treated for conditions that do not require parental consent should be warned that if a parent or guardian demands release of the medical records, the law requires the physician to do so, as provided in Texas Statutes Family Code 153.073 (refer to Rights of the Parents below).

    HIPAA does not preclude this access under state law; however, both HIPAA and Texas code do provide some limitations if in the physician's judgment the release of info could endanger the life or physical safety of the individual or another person. (Also, refer to our Medical Records page).

    TMLT encourages physicians to discuss their practice policies regarding confidentiality and a minor patient's privacy with parents at the first visit. A clear understanding by both parties of how the practice handles a child's privacy can help prevent future problems.

    What is the physician's legal obligation when treating minors for contraception?

    Contraception is not specifically addressed by law as an exception, and is therefore NOT a treatment for which a minor can give consent unless the court has granted the child the "removal of disabilities of minority" as stated in Texas Statutes Family Code Chapter 31.

    What if emergency care is needed?

    The Texas Statutes Health and Safety Code 773.008 Consent for Emergency Care states:
    Consent for emergency care of an individual is NOT required if:
    – (1) the individual is:
    —  (a) unable to communicate because of an injury, accident, or illness or is unconscious; and
    —  (b) suffering from what reasonably appears to be a life-threatening injury or illness;
    – (2) a court of record orders the treatment of an individual who is in an imminent emergency to prevent the individual's serious bodily injury or loss of life; or
    – (3) the individual is a minor who is suffering from what reasonably appears to be a life-threatening injury or illness and whose parents, managing or possessory conservator, or guardian is not present.

    Of course, the appropriate staff should continue efforts to notify a parent and secure consent for continuing treatment.

     

    Rights of the Parents

    The Texas Statutes Family Code 151.001(a) Rights and Duties of a Parent states:
    A parent of a child has the rights and duties: (3) the duty to support the child, including providing the child with...medical and dental care...  however, Section 153 provides for certain limitations to those rights (see below 'Situations Involving Divorce').

    The Medical Practice Act/Texas Occupations Code 159.005 and 006 discuss the requirements for "Consent for Release of Confidential Information" and "Information Furnished By Physician."

    However, both HIPAA and Texas code provide some limitations if in the physician's judgment access to that info could endanger the life or physical safety of the patient or another person. For addt'l info concerning the release of health info, including HIPAA requirements and mental health records, refer to our Medical Records page.

    Situations Involving Divorce

    Divorced parents who have been granted 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. ("Joint managing conservators" is the term for joint custody.)

    Thus, both may have the right to consent to invasive procedures, or only one may have that right. Ask to see a copy of the court order when in doubt.

    Both managing conservators have the right to access the child's medical records unless specifically limited by the court.

    The Texas Statutes Family Code 153.131 Presumption That Parent To Be Appointed Managing Conservator states:
    – (a) Subject to the prohibition in Section 153.004, unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.
    – (b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes that presumption.

    The Texas Statutes Family Code 153.073(a) Rights of Parent At All Times states:
    Unless limited by court order, a parent appointed as a conservator of a child has at all times the right;
    – (1) to receive info from any other conservator of the child concerning the health, education, and welfare of the child;
    – (2) to confer with the other parent to the extent possible before making a decision concerning the child's health;
    – (3) of access to medical, dental, psychological, and educational records of the child;
    – (4) to consult with a physician, dentist, or psychologist of the child;
    – (7) to be designated on the child's records as a person to be notified in case of an emergency;
    – (8) to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child. 

    The Texas Statutes Family Code 153.073(b) continues: The court shall specify in the order the rights that a parent retains at all times.

    Do both divorced parents have a right to review the information in their minor child's medical records?

    Unless limited by a court order, both the possessory conservator (custodial parent) and the managing conservator (noncustodial parent), have the following rights at all times:
    – right of access to medical, dental, psychological, and educational records;
    – the right to consult with a physician, dentist, or psychologist of the child; and
    – the right to be designated on the child's records as a person to be notified in case of an emergency.

    Specific rights for a divorced parent who has custody of child.

    The Texas Statutes Family Code 153.132  Rights and Duties of Parent Appointed Sole Managing Conservator states:
    Unless limited by court order, a "sole managing conservator" (custodial parent) has all the rights listed above in 153.073, AND the following exclusive rights (2) the right to consent to medical treatment involving invasive procedures, (3) 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.

    Unless limited by court order, the "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.

    The Texas Statutes Family Code 153.074  Rights And Duties During Periods of Possession states:
    Unless limited by court order, a parent appointed as a conservator of a child has the following rights and duties during the period that the parent has possession of the child: (2) the duty to support the child, including providing the child with...medical and dental care NOT involving an invasive procedure; (3) the right to consent for the child to medical and dental care NOT involving an invasive procedure.

     

    Situations Involving Non-Parental Consent

    When can a non-parent consent to treatment of a minor?

    When the person having the power to consent cannot be contacted and actual notice to the contrary has not been given, other persons and entities can give consent; however, there must be written authorization to do so.

    The Texas Statutes Family Code 32.001(a) Consent By Non-Parent lists other persons who may consent for medical treatment of a child:
    – (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 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.

    For info on who may consent to immunization of a child, please refer to Texas Statutes Family Code 32.101.

    Written authorization for a non-parent to give consent for treatment:

    The Texas Statutes Family Code 32.002 Consent Form states:
    Consent to medical treatment under this subchapter must:
    – (a) Be in writing, signed by the person giving consent, and given to the doctor; and
    – (b) the consent must include
    —  (1) the name of the child;
    —  (2) the name of one or both parents, if known, and the name of the managing conservator or guardian of the child;
    —  (3) the name of the person giving consent and the person's relationship to the child;
    —  (4) a statement of the nature of the medical treatment to be given; and
    —  (5) the date the treatment is to be given.