                            The Attorney                 General of Texas
                                                      May    22,   1981

MARKWHITE
Attorney General
                        Honorable John J. Kavanagh, M.D.                  Opinion No. Mu-339
                        Commissioner
                        Texas Department of Mental Health                 Re: Consent for comprehensive
                          and Mental Retardation                          diagnosis and evaluation and for
                        P. 0. Box 12668, Capitol Station                  admission to non-residential mental
                        Austin, Texas 78711                               retardation services

                        Dear Dr. Kavanagh:

                               You ask several questions involving an interpretation of the Mentally
                        Retarded Persons Act of 1977, article 5547-300, V.T.C.S. You first ask
                        whether this statute or any other statutory, constitutional or common law
                        provision requires legally adequate consent for the performance        of a
                        comprehensive diagnosis and evaluation.

                                Section   3(20) of article    554’7-300, V.T.C.S., provides    the following
                        definition:

em eroadww. suite 312
                                          (20) ‘Legally adequate consent’ means consent
‘&bock, TX. 73401                     given by a person when each of the following
am/74%3w3                             conditions has been met:

                                          (A) legal capacity: The person giving the Ansent
                                      is of the minimum legal age and has not been
                                      adjudicated   incompetent   to manage his personal
                                      affairs by an appropriate court of law;

                                          (B) comprehension of information:       The person
                                      giving the consent has been informed of and com-
                                      prehends the nature, purpose, consequences, risks,
                                      and benefits of and alternatives to the procedure, and
                                      the fact that withholding or withdrawal of consent
                                      shall not prejudice the future provision of care and
                                      services to the client       Furthermore,  in cases of
                                      unusual or hazardous treatment procedures, experi-
                                      mental research, organ transplantation,*      and non-
                                      therapeutic surgery, the person giving the consent has
                                      been informed of and comprehends the method to be
                                      used in the proposed procedure; and

                                          (Cl voltmtariness        The consent has been given
                                      voluntarily  and free        from coercion and undue
                                      influence.




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Honorable John J. Kavanagh - Page Two         (MW-339)




       This standard of consent represents an attempt to state comprehensively the
judicially developed standard of informed consent and to tailor it to persons who may
be mentally retarded. As stated in Wilson v. Scott, 412 S.W. 2d 299,301 (Tex. 1967):

                Physicians and surgeons have a duty to make a reasonable
            discloeure to a patient of risks that are incident to medical
            diagnosis and treatment.   This duty is based upon the patient’s
            right to information adequate for him to exercise an informed
            consent to or refusal of the procedure.     [Citations omitted].
            The nature and extent of the disclosure depends upon the
            medical problem as well as the patient.         In some medical
            procedures the dangers are great; in others they are minimaL

Although the Mentally Retarded Persons Act expressly requires legally adequate
consent in only three instances, see sections 35, 46(a) and 56(c) of article 5547-300, we
believe legally adequate consenis       required where the common law would require
informed consent    It is to be noted that the standard is flexible, in that the nature and
extent of the information given will vary with the risks inherent to the procedure.

       In answer to your first question, we believe that article 5547-300, V.T.C.S..,
requires legally adequate consent for the performance of a comprehensive diagnosm
and evaluation, which is defined as follows:

                 ‘Comprehensive diagnosis and evaluation’ means a study
            including a sequence of observations and examinations of a
            person leading to conclusions and recommendations formulated
            jointly, with dissenting opinions, if any, by a diagnosis and
            evaluation team. The study shall include but not be restricted
            to a social and medical history, and medical, neurological,
            audiological, visual, educational, appropriate psychological, and
            sociological examinations, and sn examination of the person’s
            adaptive behavior 1eveL

V.T.C.S. art. 5547-300, S3(24).

       You next ask whether a comprehensive         diagnosis and evaluation must be
performed before a person may be admitted to residential or non-residential mental
retardation services. Section 28 of article 5547-300, V.T.C.S., clearly provides that no
one is eligible to receive mental retardation      services unless he first receives a
comprehensive diagnosis and evaluation.     “Mental retardation services” is defined to
include residential   care and other programs of treatment       and rehabilitation   for
mentally retarded persons. & S3(8).

       You next ask whether legally adequate consent is required for admission to
residential or non-residential  mental retardation services.   In sections 35 and 46 of
article 5547-300, V.T.C.S., the statute specifically requires legally adequate consent
for admission to residential services. In addition, we believe the common law requires
the acquisition of informed consent before a retarded person receives diagnosis or




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Honorable John J. Kavanagh - Page Three      (MI+3391




treatment.  The informed consent standard, as adapted to mentally retarded persons by
article 5547-300, V.T.C.S., is the standard of legally adequate consent.

       You next ask whether mental retardation      services must be denied an adult
proposed client if he has not been declared incompetent, has no guardian, and does not
possess the mental capacity to give legally adequate consent for admission to mental
retardation services. We believe the statute clearly requires us to answer this question
in the affirmative.

        If the services must be denied, you next ask whether the proposed client has a
property right protected by the fourteenth amendment to the U.S. Constitution similar
to the one recognized in Java v. California Department            of Human Resources
Development, 317 F. Supp. 875 (NJ). Cal. 19701, afPd, 402 U.S. 12lU971). Java involved
unemployment compensation claimants who were ruled eligible for beats              at an
eligibility    interview   but whose payments were stopped, pending their former
employer’s appeaL The district court held that absence of a pretermination       hearing
constituted a denial of procedural due process The Supreme Court did not reach the
constitutional     issue because it found the state practice to conflict with the Social
Security Act.

       We believe the situation you pose invoIving mentally retarded clients is
distinguishable from that in Java. The state never obtains the right to provide the
mental retardation services as        the client has granted adequate consent to them.
Although a client who has not given consent is denied the services, we do not believe
the denial of services Infringes any right protected by the fourteenth amendment.

       You next inquire about a situation where an adult client has been admitted to
mental retardation services and it is then determined that he has never been judicially
declared incompetent, has no guardian, and does not possess the mental capacity to
give legally adequate consent for the provision of such services. You ask whether the
client must be discharged from the services.      We answer in the affirmative because
one essential statutory criteria for the provision of services to the person has not been
met.

      If such a client must be discharged, you ask whether he has a property right
protected by the fourteenth amendment to the U.S. Constitution similar to the one
recognized in Java. We do not believe he has such a property right, in that he has
never initiallyeed     eligibility for such services nor has the state’ever acquired the
power to provide them. However, article 5547-300 may impose additional duties on
the superintendent in particular cases. See
                                          -   SS35,49. See also subchapter I.

      If, however, a mentally retarded client was admitted to facilities of the
department under laws in force prior to the enactment of article 5547-300, he may
remain until appropriate alternative placement is found or until he can be admitted or
committed to a facility under the new law. V.T.C.S. art. 554’7-300, S49(a). If the
person cannot be discharged without safety to himself or the general public, the
superintendent or director of the Institution may apply for his commitment. Id, S49(b).




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Honorable John J. Kavanagh - Page Four          (Mw-339)




      You finally ask whether the facility has any duty to initiate a guardianship
proceeding to determine whether the client should be legally adjudicated incompetent
and whether a guardian should be appointed for the client.         The statute does not
impose any duty on the facility to initiate a guardianship proceeding for the client and
the facility is prevented in some cases from serving as a guardian. -See Probate Code
SS130A-1300.

       Nonetheless, when a person who must be released is in need of further care, the
department may assist him in securing it. It may inform a relative or other person
interested in the client’s welfare of the possibility of a guardianship. The relative, if
willing, can become guardian and consent to the comprehensive             diagnosis and
evaluation necessary to admission to mental retardation services. In the alternative,
where the client meets the criteria set forth in article 5547-300, section 37(a), a
judicial commitment under that section may be sought. Thus, although the department
has no duty to initiate a guardianship proceeding, it can take measures to assist a
discharged client in need of Institutional care to be provided a guardian or committed
to an appropriate facility.

                                       SUMMARY

                Legally adequate consent as defined by section 3(20) of
             article 5547-300, V.T.C.S., is required for the performance of
             a comprehensive diagnosis and evaluation.         A comprehensive
             diagnosis and evaluation must be performed before a person
             may be admitted to residential          or non-residential     mental
             retardation services. Legally adequate consent is required for
             admission to residential or non-residential mental retardation
             services.    If an adult proposed client has not been declared
             incompetent, has no guardian, and does not possess the mental
             capacity to give legally adequate consent for admission to
             mental retardation services, he must be denied the services. If
             he has been admitted to services and it is then determined that
             he has never been judicially declared incompetent,             has no
             guardian, and does not possess the mental capacity to give
             legally adequate consent, he must be discharged from such
             service-s.    In neither case does he have a property right
             protected by the fourteenth amendment to the United States
             Constitution.     However, a client admitted to a facility under
             prior law may remain there until appropriate              alternative
             placement can be found. If he cannot be discharged without
             safety to himself or the public, the superintendent may apply
             for his commitment.        The facility has no duty to initiate a
             guardianship     proceeding to determine      whether the client
             should be legally adjudicated incompetent, but the department
             may take measures to assist a discharged client in need of
             institutional care to be provided a guardian or committed to an
             appropriate facility.




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Honorable John J. Kavanagh - Page Five   (w-339)




                                          MARK      WHITE
                                          Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMlTTEE

Susan L. Garrison, Chairman
Martha AlIan
Jon Bible
Rick Gilpin
Bruce Youngblood




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