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A-- o-A& July 24, 1975

The Honorable Kenneth Gaver, M.D. Opinion No. H- 646 Commissioner, Texas Deparhnent ofMental 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 oftwo mentally retarded children have.~applied for the voluntary admission ofthe children~to a ‘state school for the mentally retarded, but, due to the parents’ religious beliefs, they do notwant the children to receive ablood transfusion for any reason while under thejurisdiction of the state school. Inlight ofthis 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 ofthe State school?
2. Does the State school for the mentally retarded have the authority togive the parents the assurance that their children will under no circumstances be subjected to a blood transfusion while under thejurisdiction of the State school?
3. Ifthese two children are admitted tothe State school for the mentally retarded and their parents withhold their consent to a blood transfusion for their children, what course ofaction should the State school take if the children’s health or life is’threatened for failure to have a blood transfusion?

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

Section 9ofthe Mentally Retarded Persons Act, article 3871b, V.T. C.S., provides an administrative procedure bywhich aperson may be voluntarily admitted-to aState school. Section 10provides:

Indetermining the order in which eligible persons are admitted to its available facilities the Board shall consider the following factors: (1) The relative need ofthe person for special training, education, supervision, treatment, care or control: (2) The impact ofthe person upon the community; and (3) The ability ofthe person’s family to assimilate him effectively into family life. The provisions ofthis section shall apply toboth judicial and administrative admissions under this Act. Section 2provides:

Itis the purpose ofthis Act to afford mentally retarded Texas citizens an ~opporhmity to develop to the fullest practicable extent their respective mental capacities.
Inlight ofthe declared purpose ofthe Act, aparent’s prospective refusal to consent to blood transfusions in our opinion may not alone provide a basis for denying admission toa 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 ofmentally retarded children in the development oftheir mental capacities. Your second question is whether the State school may give assurances that noblood transfusions will be performed on a particular student. Article 3174b-2 provides inpart:

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

The [Texas Department ofMental Health and Mental Retardation], directly or through its authorized agent or agents, shall provide or perform recognized medical treatment or services topersons admitted or committed to its care. Where the consent ofany 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 superintendent upon the advice and consent of three ~, (3) medical doctors, at least one ofwhom must principally be engaged in the private practice ofmedicine. Where .there is no guardian or responsible relative towhom request can be made, treatment and operation .shall be per: formed on the advice and consent ofthree (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 ablood transfusion is insome instances a “recognized medical treatment” is beyond doubt. Accordingly, in our opinion aState 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 ofaction ina situation where a blood transfusion is thought to be necessary toprotect the health or life ofa 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 forjudicial admis.sion ifthe medical treatment is of such necessity that the child “can not be discharged with safety tohimself. ” Inthis manner the school may retain jurisdiction ofthe child in order to provide necessary medical treatment. Except as otherwise provided byjudicial order, the~parents ofa child are given the power to consent to medical treatment for their minor child.

p. 2839The 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 ageneral matter to provide treatment without obtaining consent from aparent or guardian, the body ofthat opinion limits such authority to those instances where article 3174b-2 is complied with. Inour opinion the summary is incorrect and is not in accordance with the unambiguous words ofthe statute. Consequently, the procedure contained.in article 3174b-2 is available only when either there is noparent or guardian or the consent ofthe parent or guardian is requested and there is noimmediate reply; this procedure may not be utilized where there is an immediate negative reply. The State school must therefore obtain ajudicial ‘order which either provides the necessary consent or permits consent to be given by aperson other than aparent. As an **agency** ofthe State the Department ofMental Health and Mental Retardation may bring a Suit Affecting the Parent Child Relationship. Family Code, sec. 11.03. A court could order the performance ofthe medical treatment as a “temporary order for the safety andwelfare ofthe child.” Family Code, sec. 11. 11(a). Inthe alternative, the court could appoint atemporary 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 aprospective refusal ofthe parents to consent to a blood transfusion. The State school may not give assurances that ablood transfusion will not be performed under any circumstances. Inthe event ablood transfusion

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

is considered necessary to preserve the health or life ofa student in the State school and the student’s parents refuse consent, the consent ofa district court or aperson 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

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