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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