One of the more complex challenges in delivering health care is providing health care to minors. Physicians are faced with balancing parental rights, a minor’s autonomy, and the law. Knowing when, where, and from whom to get consent are some of the demanding areas for physicians and their staff.
A minor is a person under age 18 who has never been married and never been declared an adult by a court. As a rule, minors are considered incompetent decision makers and cannot make health care decisions or give informed consent on their own behalf. Consent, therefore, falls to the parent or legal guardian in most situations.
The Texas Family Code Section 32.003 and 32.004 list instances where a minor child can consent to certain types of medical treatment on their own. These include:
A physician may rely on a written statement by the minor containing the grounds on which the minor has the capacity to consent to treatment.
An unmarried minor who has “actual custody” of their own biological child can consent to medical, dental, psychological, and surgical treatment for the child.
Generally, in Texas minors cannot give consent for their own medical treatment (see exceptions in question 2). Contraception is not specifically addressed by law as an exception. In most situations, it is not a treatment for which a minor can give consent unless he or she is an "emancipated minor." There may be exceptions when a minor is treated in a Title X clinic.
Unless the court finds it would not be in the best interest of the child, “both parents shall be appointed as joint managing conservators of the child.” (Texas Family Code Section 153.131) Joint managing conservator is the modern term for “joint custody.”
The court granting the divorce may allocate the rights and duties of the joint managing conservators. Thus, both may have the right to consent to invasive procedures, or only one may have that right. When one parent is appointed “sole managing conservator” (the custodial parent), that parent has the right to consent to invasive procedures. A divorced parent without custody (the “possessory conservator”) may not have the right to consent to invasive procedures. Ask to see a copy of the court order when in doubt. Both joint managing conservators have the right to access the child's medical records unless specifically limited by the court granting the divorce.
Unless limited by a court order, both the possessory conservator (custodial parent) and the managing conservator (noncustodial parent), have the following rights:
For a case study related to accessing the medical records of a minor, please see Case 8 in Case Briefs — HIPAA.
When the person having the power to consent (parent or guardian) cannot be contacted and actual notice to the contrary has not been given, the Texas Family Code Sec. 32.001 allows other persons and entities to give consent. These include:
When documenting consent by a non-parent, consent must be in writing, signed by the person giving consent and include:
In some situations, a parent of a child may enter into a formal “authorization agreement” with the grandparent, adult sibling, adult aunt or uncle of the child to authorize them to consent to medical, dental, psychological, or surgical treatment — along with other rights. However, this authorization agreement must contain very specific elements. These elements can be reviewed in the Texas Family Code Section 34, Authorization Agreement for Nonparent Relative, Sec. 34.003 Contents of Authorization Agreement.
Section 261.101 of the Texas Family Code, Texas law requires professionals to make a report within 48 hours of first suspecting abuse, neglect or exploitation of children. The report may be made to (1) any local or state law enforcement agency; or (2) the Department of Family and Protective Services. The Texas Family Code Sec. 261.001 includes definitions of child abuse that may be helpful to review.
Resources for reporting abuse, neglect, or exploitation of children in Texas: