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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.)?
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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."
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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
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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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