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                            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
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                                                            .   .




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




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