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                                                    July 24,   1975


              The Honorable Kenneth Gaver,   M.D.                     Opinion No.   H-   646
              Commissioner,    Texas Deparhnent
              of Mental Health and Mental Retardation                 Re:    Medical treatment of
              Box 12668, Capitol Station                                     voluntarily admitted
              Austin,  Texas 78711                                           patients at state schools
                                                                             for the mentally retarded.
              Dear       Dr.   Gaver:

                  The parents of two mentally retarded children have.~applied for the
              voluntary admission    of the children~to a ‘state school for the mentally retarded,
              but, due to the parents’ religious beliefs,    they do not want the children to
              receive a blood transfusion    for any reason while under the jurisdiction   of
              the state school.  In light of this situation you ask our opinion with respect
              to the following questions:

                            1. Is the State school for the mentally retarded
                            required to admit these minor children in the event
                                                                            I
                            their parents ‘withhold consent for blood transfusions
                            to be administered   to their children while under the
                            jurisdiction of the State school?

                            2. Does the State school for the mentally retarded
                            have the authority to give the parents the assurance     that
                            their children will under no circumstances    be subjected
                            to a blood transfusion while under the jurisdiction   of
                            the State school?

                            3. If these two children are admitted to the State
                            school for the mentally retarded and their parents
                            withhold their consent to a blood transfusion    for
                            their children,  what course of action should the State
                            school take if the children’s health or life is’threatened
                            for failure to have a blood transfusion?




                                                        p.   2837
The Honorable     Kenneth D. Gave=,         M. D.,   page 2   (H-646)




    Section 9 of the Mentally Retarded Persons Act, article 3871b, V. T. C. S.,
provides an administrative   procedure by which a person may be voluntarily
admitted-to a State school.   Section 10 provides:

              In determining the order in which eligible persons
          are admitted to its available facilities the Board
          shall consider the following factors:

               (1) The relative need of the person for special
          training,   education,  supervision,  treatment,   care
          or control:
               (2) The impact of the person upon the com-
          munity; and
               (3) The ability of the person’s    family to assimi-
          late him effectively   into family life.

               The provisions  of this section shall apply to both
          judicial and administrative   admissions   under this Act.

Section   2 provides:

          It is the purpose of this Act to afford mentally
          retarded Texas citizens an ~opporhmity to develop
          to the fullest practicable extent their respective
          mental capacities.

In light of the declared purpose of the Act, a parent’s prospective    refusal
to consent to blood transfusions   in our opinion may not alone provide a
basis for denying admission    to a child who is in need of special training.
We do not consider the situation where the parents’ actions would interfere
with the school’s   assistance of mentally retarded children in the develop-
ment of their mental capacities.

     Your second question is whether the State school may give assurances
that no blood transfusions will be performed  on a particular student.
Article  3174b-2 provides in part:




                                       p.    2838
The Honorable   Kenneth D.   Gave=,        M. D.,   page 3   (H-646)




        The [Texas Department of Mental Health and
        Mental Retardation],      directly or through its
        authorized agent or agents,       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 super-
        intendent 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 and operation .shall be per:
        formed on the advice and consent of three (3)
        physicians    licensed by the State Board of
        Medical Examiners.

     Relying upon this article,  Attorney General~Opinion    M-152 (1967)
held that the Department had the duty to provide necessary       medical
 treatment to persons within its jurisdiction.   That a blood transfusion is
in some instances a “recognized     medical treatment”  is beyond doubt.
Accordingly,   in our opinion a State school may not give assurance      that
under no circumstances     will the children be subjected to a blood transfusion.

    Your third question concerns the proper course of action in a situation
where a blood transfusion    is thought to be necessary    to protect the health
or life of a child and his parents refuse consent.      In such a situation the
parents may seek to remove the child from the school.          V. T. C. S.,
art. 3871b. sec. 9(b).    However,    under this provision the superintendent
may file an application for judicial admis.sion if the medical treatment is
of such necessity that the child “can not be discharged with safety to himself. ”
In this manner the school may retain jurisdiction      of the child in order to pro-
vide necessary    medical  treatment.

    Except as otherwise provided by judicial  order,           the~parents of a child
are given the power to consent to medical treatment            for their minor child.




                                      p.    2839
The Honorable    Kenneth D. Gave=,        M. D.,     page 4   (H-646)




Family Code, sec. 12.04(6);    See Moss v. Rishworth.   222 S. W. 225
(Tex. Comm.   192.0). In someinstances    the Department may obtain
consent pursuant to article 3174b-2.   supra.  While the summary in
Attorney General Opinion M-152 contains language which would allow
the Department as a general matter to provide treatment without
obtaining consent from a parent or guardian,    the body of that opinion
limits such authority to those instances where article 3174b-2 is
complied with.   In our opinion the summary is incorrect    and is not in
accordance  with the unambiguous words of the statute.

     Consequently,  the procedure   contained.in article 3174b-2 is
available only when either there is no parent or guardian or the consent
of the parent or guardian is requested and there is no immediate       reply;
this procedure may not be utilized where there is an immediate        negative
reply.   The State school must therefore    obtain a judicial ‘order which
either provides the necessary    consent or permits consent to be given by
a person other than a parent.

    As an agency of the State the Department of Mental Health and
Mental Retardation may bring a Suit Affecting the Parent Child Rela-
tionship.  Family Code, sec. 11.03.      A court could order the perfor-
mance of the medical treatment      as a “temporary    order for the safety
and welfare of the child.”    Family Code, sec. 11. 11(a).     In the alter-
native, the court could appoint a temporary     possessory   conservator,
section 11.11(a)(l), who could be empowered to consent to the medical
treatment.    Family Code, sec. 14.04(3).

                        SUMMARY

            The State school for         the mentally   retarded may
        not refuse admission      to   a child solely on the basis of
        a prospective    refusal of     the parents to consent to a
        blood transfusion.      The    State school may not give
        assurances    that a blood     transfusion will not be performed
        under any circumstances.           In the event a blood transfusion




                                         p.   2840
The Honorable   Kenneth D. Gave=,       M. D.,      page 5   (H-646)




        is considered    necessary  to preserve the health or
        life of a student in the State school and the student’s
        parents refuse consent,    the consent of a district
        court or a person authorized by a district court to
        give consent must be obtained prior to performing
        the transfusion.

                                             Very   truly yours,




APPROVED:
                                   c/        Attorney   General    of Texas




DAVID   M.   KENDALL,    First   Assistant




C. ROBERT HEATH,        Chairman
Opinion Committee




                                   p.   2841
