Objectives

  • Identify three categories of individuals who have the legal right to consent to a teen’s health-care treatment in an emergency.
  • Determine one individual, other than the one usually responsible for consenting to a teen’s health care, who may provide consent to a teen’s treatment.
  • Given a case scenario, choose two situations in which a teen may consent to his or her own treatment.
  • Select one requirement of Texas law regarding the provision of family planning services to a teen.

Definition of a Minor

Minors generally do not have the legal capacity to consent to medical and dental care. For the purposes of this training, “medical care” also refers to psychological, psychiatric, and surgical treatment.

In Texas, the legal definition of a minor is a person under 18 years of age who has never been married and never been declared an adult by a court. A minor may obtain legal emancipation when a judge is convinced that the minor can take care of himself/herself and be treated as an adult. Other instances in which a minor may consent to medical care are covered later in this section.

Categories of Persons Who May Consent to the Medical Care of Teens

The Texas Family Code, Health and Safety Code, and Penal Code address teen-consent issues.

Parental Rights to Consent for Teens

Under Texas Family Code § 151.001, parents have the:

When parents are divorced:

Fast Fact – Court-Ordered Limitations

In the case of divorced parents or for children in foster care, a court order may limit or specify who is authorized to provide medical consent and for what purposes. Providers with concerns can request to review this portion of the divorce decree.

Consent in Emergencies

Appropriate medical care for teens with an urgent or emergent condition should never be withheld or delayed because consent cannot be obtained (AAP Committee on Pediatric Emergency Medicine, 2003; 2007).

In the case of an emergency:

Providers should seek consent or assent for emergency care from a teen patient as appropriate for the teen’s development, age, and understanding (AAP Committee on Pediatric Emergency Medicine, 2003; 2007).

The AAP recommends that providers develop written guidelines that conform to the laws of consent for the treatment of minors, including specific information on financial billing, parental notification, and patient confidentiality for unaccompanied minors (AAP Committee on Pediatric Emergency Medicine, 2003; 2007).

Consent by a Non-parent

Texas Family Code § 32.001

The following individuals may consent to health-care treatment (other than immunization*) of a minor when a parent/conservator cannot be contacted and that person has not given express notice to the contrary:

* Those who may consent to immunization are detailed below.

The Texas Youth Commission (TYC) has the authority to consent to the medical or dental treatment of a minor committed to it when the person having the right to consent has been contacted and that person has not given actual notice to the contrary. If a minor requires emergency medical care while in TYC detention and the parent/guardian cannot be contacted, the superintendent of the TYC facility (but no other employee) can provide consent for treatment.

Persons may not consent for a minor if they have actual knowledge that a parent/conservator:

  • Has told that person not to consent for the minor.
  • Has withdrawn a prior written authorization for the person to consent.
  • Has expressly refused to give consent for immunization.

Consent Form

Texas Family Code § 32.002

A consent form for a non-parent to give consent for health-care treatment must be:

The consent form must include:

Consent to Immunization

Texas Family Code § 32.101 & § 32.102

The following persons may consent to immunization of a minor:

If one of the above is not available and authority to consent is not expressly denied, those listed below may give consent for immunization:

For non-parents to provide consent for a minor’s immunization, they must give the health-care provider:

Fast Fact – Limited Liability for Immunization

Except for injuries resulting from the provider’s or the facility’s willful misconduct or gross negligence:

  • A provider is not liable for an adverse reaction to an immunization or for injuries to a minor resulting from factual errors in the health history or information given by the person consenting to the provider.
  • A person consenting to immunization of a minor, a health-care provider, nurse, or any medical facility is not liable for damages arising from an immunization administered to a minor as authorized by Texas law. Texas Family Code § 32.103.

Situations in Which Minors Can Consent to Their Own Treatment

Texas Family Code §§ 32.003, 32.004

Texas law allows minors to consent to treatment by a licensed physician or dentist when the minor is:

Fast Fact – Limited Liability

Immunity from liability for damages resulting from the examination or treatment of a minor, except to the extent of the person's own acts of negligence, extends to a physician or dentist licensed to practice in the state or a hospital or medical facility at which a minor is treated. These entities may rely on the written statement of the minor stating the grounds on which he/she has the capacity to consent to the treatment. Texas Family Code § 32.001(d)

Consent for Inpatient Mental Health Treatment

A person 16 years of age or older or a person younger than 16 years of age who is or has been married may give his/her consent when requesting admission to an inpatient mental health facility by filing a request with the administrator of the facility to which admission is requested. Texas Health and Safety Code § 572.001.

Fast Fact – Compensation for Counseling without Parental Consent

A parent, managing conservator, or guardian who has not consented to counseling treatment of the minor is not obligated to compensate a physician, psychologist, counselor, or social worker for counseling services rendered under the Texas Family Code section on child consent to counseling (§ 32.04). A provider counseling a child under this section is not liable for damages except for those resulting from the provider's negligence or willful misconduct. Texas Family Code § 32.004.

Texas Health and Safety Code § 572.001 also specifies that the parent, managing conservator, or guardian of a person younger than 18 years of age who is not and has not been married may request the admission of the person to an inpatient mental health facility by filing a request with the administrator of the facility to which admission is requested.

Consent for Family Planning and Contraceptives

Parental consent is not required for minors to receive information about family planning. However, consent issues for contraceptives vary. While minors do not need parental consent to purchase nonprescription contraceptives (e.g., condoms), Texas law requires minors to get a parent’s permission to receive prescription contraception. When parental consent is required, the parent must sign both the general consent for treatment and the method-specific consent for a prescription method of contraception. Whenever the method is changed to another prescription method, the parent must sign that method-specific consent.

There are exceptions to parental consent requirements. Under federal law, minors may give their own consent and receive confidential family planning services on request if the funding source is Medicaid or Title X Family Planning Program. The constitutional right of privacy has been found to cover a minor's access to contraceptives.

In addition, minors may consent for prescription contraceptives if they are legally emancipated or at least 16 years old and living on their own. This does not include abortion. Minors may also consent to prenatal care.

Parental Notification for Abortion

Texas Family Code § 33.002 mandates that a physician may not perform an abortion on an unemancipated minor unless:

—or—

If the parent, conservator, or guardian cannot be notified after a reasonable effort, a physician may perform an abortion if the physician gives 48 hours’ constructive notice, by certified mail, restricted delivery, sent to the person’s last known address. This period begins when the notice is mailed. If the person does not receive notification within the 48-hour period, the abortion may proceed even if the notice by mail is not received.

A physician who intentionally performs an abortion on a pregnant, unemancipated minor in violation of the notification law commits a legal offense punishable by a fine up to $10,000. It is a defense to prosecution if the minor falsely represented her age or identity to the physician that she was at least 18 years of age by displaying an apparently valid governmental record of identification. This defense only applies, however, if a reasonable person under similar circumstances would have relied on the representation, the physician did not have independent knowledge of the minor's actual age or identity, and the physician used due diligence in determining the minor's age or identity.

Judicial Approval for Minor Consent

Texas Family Code § 33.003 allows for judicial approval (also known as a “judicial bypass”) for a minor to have an abortion without notification to one of her parents, managing conservator, or guardian. To obtain judicial approval, a minor must file an application for a court order authorizing her consent to an abortion without notification. The court shall enter an order authorizing the minor’s consent if it determines one of the following:

The law provides that the court shall rule on the minor’s application by 5 p.m. on the second business day after the date the application is filed with the court unless the minor requests an extension. In this case, the ruling must be made by 5 p.m. on the second business day after the date the minor states that she is ready to proceed to a hearing. If the court fails to rule within these time periods, the application is deemed to be granted, and the physician may perform an abortion. If the court determines that judicial approval should not be granted, the minor has the right to appeal.

Examination of Abuse or Neglect Without Consent

Texas Family Code § 32.005

In Texas, a physician, dentist, or psychologist having reasonable grounds to believe that a minor's physical or mental condition has been adversely affected by abuse or neglect may examine the minor without the consent of the patient, the patient's parents, or other person authorized to consent to treatment. Such examination may include X-rays, blood tests, photographs, and penetration of tissue necessary to accomplish those tests. A physician, dentist, or psychologist examining a child under this section is not liable for damages except for those resulting from the provider’s negligence.

Exceptions

Unless consent is obtained as otherwise allowed by law, a physician, dentist, or psychologist may not examine a child 16 years old or older who refuses to consent or for whom consent is prohibited by a court order.

Legal requirements for reporting of abuse and neglect will be covered in Section 4 of this training.

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