by Laura Brockway, Vice President of Marketing,
Tanya Babitch, Assistant Vice President of Risk Management, and
Robin Desrocher, Director, Risk Management
See also: Managing medical record release for children and young adults (on-demand webinar)
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.
Who is considered a minor?
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.
When can minors consent to treatment?
- a minor on active duty with the armed forces of the United States;
- a minor who is 16 years of age or older, residing apart from his/her parents or guardian, and managing his/her own financial affairs;
- a minor who is unmarried and pregnant can consent to treatment related to the pregnancy other than abortion;
- a minor can consent to diagnosis and treatment of infectious, contagious, or communicable disease that are reportable to the Texas Department of State Health Services;
- a minor who is unmarried, is the parent of a child, has actual custody of his or her child and consents to the medical, dental, psychological, or surgical care for the child;
- a minor who is serving a term of confinement in a facility operated by or under contract with the Texas Department of Criminal Justice; and
- a minor can consent to counseling for suicide prevention, chemical or alcohol addiction or dependency, or sexual, physical or emotional abuse.
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.
Who can consent for the treatment of the child of an unmarried minor?
An unmarried minor who has “actual custody” of their own biological child can consent to medical, dental, psychological, and surgical treatment for the child.
What are my legal obligations when treating minors for contraception?
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.
Do both divorced parents have a right to review the information in their minor child's medical records?
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:
- right of access to medical, dental, psychological, and educational records;
- the right to consult with a physician, dentist, or psychologist of the child; and
- the right to be designated in the child's records as a person to be notified in case of an emergency.
For a case study related to accessing the medical records of a minor, please see Case 8 in Case Briefs — HIPAA.
When can a non-parent consent to treatment of a minor?
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:
- adult siblings;
- adult aunts and uncles;
- an educational institution with written authorization;
- any adult who has actual care, control, and possession of the minor with written authorization;
- a court having jurisdiction over a suit affecting the parent-child relationship;
- an adult responsible for the actual care, control, and possession of a child under the jurisdiction of a juvenile court or committed by a juvenile court to the care of an agency of the state or county;
- a peace officer who has lawfully taken custody and has reasonable grounds to believe immediate medical treatment is needed; and
- for immunizations only, a guardian or any person authorized under law or court order to consent for the child or, if these persons are not available, any one of the persons listed above.
When documenting consent by a non-parent, consent must be in writing, signed by the person giving consent and include:
- the name of the child;
- the name of one or both parents, if known; and the name of any managing conservator or guardian of the child;
- the name of the person giving consent and their relationship to the child;
- a statement of the nature of the medical treatment to be given; and
- the date the treatment is to begin. (Texas Family Code Sec. 32.002)
Can parents delegate the right to consent to their child’s treatment to someone else?
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.
What are my responsibilities if I suspect abuse or neglect of a minor?
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:
- For life threatening or emergency situations, call your local law enforcement agency or call 911 immediately, and then make a report to The Department of Family and Protective Services.
- Reporting by phone: Call the Abuse Hotline 24 hours a day, 7 days a week, toll-free at 800-252-5400.
- Reporting by secure website: https://www.txabusehotline.org. Reports made through the website may take up to 24 hours to process. If you believe your situation requires action in less than 24 hours, you wish to remain anonymous, or you have insufficient data to complete the required information, call the Texas Abuse Hotline.
Revised April 26, 2022