# TheAttorney General ofTexas
September 24, 1980

MARK WHITE Attorney General Honorable John J. Kavanagh, M.D. Commissioner Texas Department ofMental Health &Mental Retardation Opinion No. MW-248

Re: Means by which the Department of Mental Health and Mental P.0. Box12668,Capitol Station Austin, Texas 78711 Retardation can obtain consent for dental treatment of patients or residents

Dear Mr.Kavanagh:

Your question concerns article 3174b-2, V.T.C.S., which provides, in pertinent part:
The Board of Texas State Hospitals and Special

Schools.

.. shall provide or perform recognized medical treatment orservices 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 superintendent upon the advice and consent ofthree (3)medical doctors, at least one of whom must principally be engaged in the private practice of medicine. Where there isnoguardian or responsible relative to whom request can be made, treatment end operation shall be performed on the advice andconsent ofthree (3)physicians licensed by the State Board ofMedical Examiners.

Acts 1955,54th Leg., ch. 54, §l, at 86. The Board ofTexas State Hospitals and Special Schools was abolished in 1965 and replaced by the Texas Department ofMental Health andMental Retardation. Acts 1965,59th Leg., ch. 67, SSl, 2, at 165. You ask whether article 3174b-2 authorizes a superintendent of aDepartment of Mental Health end Mental Retardation facility to order dental treatment and services for persons committed thereto upon the advice and consent ofthree dentists.

In instances where consent to treatment or services is considered necessary but noguardian orresponsible relative ofthe person committed to

p. 782Honorable John J. Kavanagh - Page Two (MW-248)

the facility exists, article 3174b-2 provides that treatment shall be performed only upon the advice and consent of three physicians “licensed by the State Board of Medical Examiners?’ Dentists are not licensed by the State Board of Medical Examiners, article 4504a, V.T.C.S., but instead are licensed by the State Board of Dental Examiners. Article 4543, et., V.T.C.S. Accordingly, we conclude that dentists may not provide the necessary consent to treatment when no guardian or responsible relative ofthe person committed tothe facility exists.
When the consent of the person committed to the facility or his guardian has been requested, but no immediate response is forthcoming, article 3174&2 provides that treatment shall be ordered only with the consent of three “medical doctors, at least one of whom must principally be engaged inthe private practice of medicine.” The question iswhether the legislature, byspecifying “medical doctor” inthis instance and “physician licensed bythe State Board ofMedical Examiners” elsewhere, intended todistinguish between the two. Inother words, may adentist, although not licensed by the Board of Medical Examiners, nevertheless qualify as a “medical doctor” and thereby be eligible to provide consent to treatment or services in this instance? We think not. Although a plausible argument can be made that the use of different terminology indicates that “medical doctor” should be interpreted more broadly than “physician licensed bythe State Board ofMedical Examiners,” wedonot think acourt would bold that the term isbroad enough to include dentists, at least for purposes of article 3174b-2. Physicians end dentists sre governed by different agencies and regulated by different statutes, and we think this evidences a clear intention to distinguish between them. Moreover, we can see no reason why dentists should be eligible toprovide consent inthis instance when they clearly may not provide consent when IX)guardian or responsible relative exists. Thus, we conclude that dentists are not “medical doctors” within the meaning of article 3174b-2, and that they may not consent to dental treatment under the circumstances described above.

This does not mean that article 3174b-2 renders superintendents powerless to provide necessary dental treatment to patients and residents oftheir facilities when consent to treatment has not or cannot be obtained. To construe article 3174&2 in such a manner es to prevent treatment from being administered because there is, effectively, no one to provide consent would be, inourjudgment, to reach an unduly harsh result. Article 3174b-2 directs the Department of Mental Health end Mental Retardation to “provide or perform recognized medical treatment or services to persons admitted or committed to its care,” and we think medical treatment necessarily embraces dental care. See, 3, Little v.Little, 576S.W.2d493(Tex. Civ. App. -San Antonio 1979, no writr When dental services are deemed necessary, therefore, it is our opinion that the superintendent may provide such care with the consent ofthree physicians licensed bythe State Board ofMedical Examiners, solong
asthe other provisions ofarticle 3174b-2 are met, even though the services themselves would beperformed bydentists.
SUMMARY

Article 3174b-2, V.T.C.S., prohibits dentists from consenting to dental treatment ofpersons under the care ofaDepartment

P. 783. z

Honorable John J. Kavanagh - Page Three (NW-248)

of Mental Health and Mental Retardation facility. Dentists may provide dental treatment or services, however, provided consent isobtained from three physicians licensed bythe State Board of Medical Examiners end all other conditions ofarticle 3174b-2 are satisfied.

MARK WHITE Attorney General ofTexas

JOHN W.FAINTER, JR. First Assistant Attorney General
RICHARD E.GRAY 111 Executive Assistant Attorney General Prepared byJon Bible Assistant Attorney General
APPROVED: OPINION COMMlTTEE

Susan Garrison, Acting Chairman Jon Bible Rick Gilpin Barbara Marquardt

P. 784