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October 25, 1967

Dr. John Klnross-Wrlght Commissioner Opinion No. M-152,
Texas Department of Mental Re: Whether, by virtue of Article Health and Mental Retardation 317&b-2,Vernon's Civil StatBox S, Capitol Station utes, Article 3871b, Vernon's Austin, Texas

. ~Clvll Statutes, and the Texas 'MentalHealth Code (Articles :5547-l, et seq.,Vernon's Civil Statutes), the Department of Mental Health and Mental Retardation has the duty and authority to provide necessarymedical treatment or services to persons admitted or committed,wlthDear Dr. Klnross-Wright:' out anyone else's consent, 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 hospitalswho I@. ment&lly lncompetent will have a medical problemwhich needs Immediate attention such as the recent case of a mentally retarded pekon at on6 of our State schoolswhose jaw became swollen and obviously u.lt6 painful. 4 This person was a hyperactive highly excitable)young femalewhose natural parents:~could

not be reached because Chey were out of the country. Viewed as an emergency lnvolvingpossible lqse of life, this person was phgs.lcally

restrained, given sedation so that the necessary examination could be made and abscessed teeth 

### were abstracted.

. "It seems fattily

bbvloue that many If not most of the duties and obligations of such a -704-. .

Dr. John Kinross-Wright,page 2 

### (M-152)

in regard to care,

. _ , .. . parent, spouse or guardian custody and control of the stuoent or patlent c are relinquished and vested in the Department of Mental Health and Mental Retardationby vlr-, tue of Article 

### 3871b,V.C.S., known as 'The Mentally Retarded Persons Act', as amendedby 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 onemonth before passing 'TheMentally 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 promptmedical treatment in the State lnstitutions listed,but it does not appear to intend to make authorizations from parents, spouses or guardiansmandatory but merely provided an alternative consent procedure if such consent was considerednecessary. "Article

### 5547-70requires the head of a mental hospital to provide adequatemedical and ~psychlatriccare and treatment for every patient in accordancewith the highest standards ofmedical practice and Article 

### 3871brequires the Board (now the De Retardation

Partment of Mental Health and Mental to designate the institution in which any mentally retarded person under Its jurisdlctl.on is placed, andmay designate any lnstitution,or part thereofunder Itsmanagement and control as a special facility for the dlagnoslis, special training, education, supervision,treatwent, care or control ofmentally retarded persons.
You request our opinion on the followlng,questlons.
1. Whether the Department of Mental Health and Mental Retardationhas the duty and authority without the consent of anyone to provide necessary ,medlcaltreatment 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-let seq.)?



### -705-Dr. John Klnross-Wright,page 3 (M-152)

2. If othersmust consentbefore necessarymedical treatment servicesmay be given, please indicatewhose consent Is necessary In each class of persons?
The MentallyRetarded PersonsAct 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 Institutionsand may, If It desires and the diagnosis warrants, Inform the parents, or spouse, or guardian, or responsible relat-lve of the Inmate of the results of the examination and any recommendationsof the staff conducting the examination and rendering the diagnosis.

Article 5547-1, et seq.,Vernon's Civil Statutes, contains the provisionsrelative to the Texas Mental Health Code. Section 70 of that Act expresslyprovides that the head of a mental hospital shallprovide adequatemedical and psychiatric care and treatment for every patient In accordancewith the highest standardsaccepted inmedical practice.

Article 317413-2,

Vernon's Civil Statutes,which gives the Board power to providemedical treatment and serviceswlthout the consent of relatives, etc., provides as follows:

"TheBoard for Texas StateHospitals and Special Schools,directly or through Its authorized agent or agents, shallprovide or perform recognizedmedical treatment or services to persons admitted or committed to Its care. Where the consent of any person or guardian is considerednecessary, and 1s requested, and such person or guardian shall fail to Immediatelyreply thereto, the performance or provision for the treatment or services shallbe orderedby the ,superlntendent

upon the advice and consent of three 

### (3)medical doctors, at least one of whom must principallybe engaged in the private practice of medicine. Where there is no guardian or responsiblerelative to whom request can be made, treatment and operation shallbe performed on the advice'and consent of three 

### (3)physicians licensedby the State Board of Medical Examiners. This authority shall not allow the performance of any operation Involving sexual sterillzatlonor frontal lobotomies." -706-Dr.., John Klnross-Wright,page 4 (M-152)

The Preamble of Public Policy for saidArticle 317&b-2 states the following:

"It Is the sense of the Legislature that laws are insufficient or nonexistentwhich 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 causesundue ind 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 controlledby the Board for Texas StateHospitals and Special Schools; and that It would be advantageous to have speclflc authority to perform such services."
The Title of the above describedAct provides that It Is for the purpose of permitting the Board of Texas State Hospitals and Special Schools to provide or perform necessary treatment and medical services to persons admitted or committed to Its care without the consent of responsible relatives or guardians In certain cases.

In 

### 1965the StateBoard for Texas Hospitals and Special Schoolswas abolishedwhen the Legislature enacted the Texas Mental Health and Mental Retardatl~on Act, codifiedas Article 5547-201 to 5547-204,Vernon's Civil Statutes,which created the Texas Department of Mental Health andMental'Retardation and gave It the exclusivemanagement 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;ion

of 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 (Artlcle 

### 5547-1,et seq.,Vernon's Civil Statutes), the Department of Mental Health and Mental Retardation has the duty and authority to provide 

### -707 -Dr. John Klnross-Wright,page 5 (M-152)

necessarymedical treatment or serv,$ces to 'persons admitted or committedwithout obtaining anyone else's consent.

Preparedby Jack Sparks AssistantAttorney 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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