MARK WHITE Attorney General 

# The Attorney General of Texas May 21, 1980

Honorable John J. Kavanagh, MD Commissioner Texas Department ofMHMR Box12668,Capitol Station Austin, Texas 78711 Opinion No. NIV-180 Re: Voluntary admission of minors to mental hospitals.

Dear Dr. Kavanagh: You have requested our opinion regarding the voluntary admission of minors to mental hospitals. Article 5547, V.T.C.S., provides, inpertinent part: The application for admission of aperson to amental hospital asa voluntary patient: (a) Shall be in ~writing and signed by the voluntary patient if he is legally of age or by his parent, legal guardian, or the county judge, with his consent, if he isnot legally **of**age. The Department of Mental Health &Mental Retardation has for many years interpreted this provision to require the consent of a minor for voluntary admission. See also Rosenthal, Interpretation of the Mental Health Code (5th ed. 1976)mou ask whether it can be construed so as to require the minor’s consent only when he is admitted upon application of the county judge.Since the language of the statute is ambiguous, the lon@anding construction placed upon it by the Department is entitled to substantial weight. Cm 427 S.W.2d 605, 608 (Tex. 1968); Heaton v. Bristol, 317S.W.Zd86, 95 (Tex. Civ. App. - Waco 19581,cert. denied, 359 U.S. 230 0959); Associated Indemnity Corp. v. Oil Well Drilling Co. 258 S.W.%d523, 529 (Tex. Civ. App.- Dallas 19531,aff’d, 264S.W.2d 697 Tex. 1954). The legislature, which must be presumednave been aware of the Department’s interpretation, has not amended the statute since 1957. Under these circumstances, we believe that the Department of Mental Health & Mental Retardation should continue to require the consent of a minor for voluntary admission to afacility ofthe Department.

P. 572Honorable John J. Kavanagh, M.D. - Page Two (NW-180)

Youalso ask whether there isan age below which aperson cannot give consent under article 5547-23, V.T.C.S. The statute itself imposes no minimum age, and, were weto hold that the age of consent isthe same as for purposes of contract, no minor could ever be admitted to a mental hospital as a voluntary patient, and part of the statute would be rendered meaningless. It seems likely that the legislature did not here intend to impose the technical meaning of contractual consent. See Austin v.Collins, 200S.W.2d 666(Tex. Civ. App.- Fort Worth 1947,writ ref’d n.r.e.1. x minimum age can beinferred from the statute. Webelieve the professionals at the hospital must make a determination, just as they do with adults, whether the child has sufficient competency and maturity to give effective consent. Ifthe professionals are not convinced that the particular child has the ability togive consent, they should seek an involuntary commitment throlrgh the courts. The statute does not require that the minor’s consent be in writing, however. The application must be in writing and it must be si +=- ed by the minor’s parent a legal guardian or by the county judge. The minor’s in ormed consent must be obtained, but there is nothing in the statute to require that such consent begiven inwriting. Finally, you ask about the effect of Parham v. J.R., 61L.Ed.2d 101(l979), on the Department’s voluntary admissions policy. In Parham, s_~lpra, the Supreme Court upheld a Georgia statute which permitted a child to be admitted to a state mental health care facility without his consent, upon the application of his parents. The court based its decision upon the “traditional presumption that the parents act in the best interests of their child,” and found the Georgia procedure acceptable, so long as a physician%
“independent examination and medical judgment” isinterposed inthe process. Clearly, the Supreme Court in Parham w was considering cmly the minimum constitutional standards required for the admissmn of a minor to a mental health care facility. Since the Department ofMental Health &Mental Retardation haslong construed article 5547..23, V.T.C.S., to require a stricter standard - the consent of the minor as well as that of his parents - Parham has little relevance for the Texas admissions procedure. SUMMARY

A minor may be admitted to a mental hospital as a voluntary patient only with hisinformed consent.

gii$gQdf Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General

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Honorable John J. Kavanagh, M.D. - Page Three (NW-180)

TEDL.HARTLEY Executive Assistant Attorney General Prepared byRick Gilpin Assistant Attorney General APPROVED: OPINION **COMMlTTEE** C.Robert Heath, Chairman Susan Garrison Rick Gilpin Bruce Youngblood

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