Nonemergency Care

The first question that must be answered when you seek medical care is whether you may consent to your own care. All persons 18 years of age or older who have not been judged insane or incompetent may legally consent to their own medical care. This consent may be ineffective, however, if you are too ill (or medicated) to know what you are agreeing to. Generally, no other person may consent to your care if you are a conscious, competent adult. A husband cannot consent to your care if you are a conscious, competent adult. A husband cannot consent to care for his wife, nor may a wife consent to care for her husband. A parent may not consent to the care of an adult child, nor may sons or daughters consent to the care of their parents. If you have a legal guardian, only that guardian may consent to your care.

What if adults are unable to consent to their own care? If you are unable to consent to your own care--whether due to illness, medication, or some other cause--someone (it can be a friend, relative, or health care provider) must petition the appropriate court to have a temporary guardian appointed to consent to medical treatment for you. In many cases, when there appears to be no doubt or dispute about the necessity of the treatment, many hospitals and doctors will treat you in the absence of a technically valid consent.

How can adults determine who may consent for them? If you anticipate that you may be unable to consent to your medical care, you may appoint another person to consent for you. This is called giving the other person a "power of attorney" to consent to medical care. This makes the person your agent and the hospital or physician must accept that person's decisions as if they were your own. This is not a complex legal proceeding; but, because of the power it delegates, it should be done with the assistance of an attorney. If there is a court determination that you were incompetent or insane at the time you signed the power of attorney, it would be void.

Who may consent for a minor? Generally, until a minor's 18th birthday, only the parents or guardian have the right to consent to medical care for the minor. A husband and wife have an equal right to consent to medical care for their minor children.

What about divorced parents? The parent with custody of the minor (called the managing conservator) has the right to consent to medical treatment for the minor. The parent without custody can consent to medical care only when in possession of the minor, and then only for emergency treatment. (This will vary from state to state.)

When may other relatives consent to medical care for the child? The Texas Family Code provides that, if the parent or guardian cannot be contacted, a grandparent, adult brother or sister, or adult aunt or uncle may consent to medical care for a minor. This requires that an attempt be made to contact the parent or guardian; but it does not require unnecessary delay in obtaining care for the minor if the parent or guardian cannot be reached. (This will vary from state to state.)

Who else may consent to treatment for the minor? The parent or guardian may give written permission to a school where a minor is enrolled, to allow the school to obtain medical care for the minor. The parent or guardian may also give written permission to any adult who is caring for the minor to obtain medical care for the minor. But even when there is an authorization for care, there still must be an attempt to contact the parent or guardian if a situation arises requiring care for the minor. (This will vary from state to state.)

When may minors consent to their own care? The Texas statutes provide that a minor may give consent if the minor:

* is on active duty in the armed services of the United States

* is 16 years of age or older, is living away from a parent or guardian, and is managing his or her own financial affairs

* is married

* is seeking medical treatment for pregnancy, other than abortion (Although the Texas statute does not allow a minor to give consent for an abortion, U.S. Supreme Court decisions involving laws of other states have struck down laws that require parental consent during the first trimester; recent Supreme Court decisions also indicate that a minor may, to some extent, be able to obtain contraceptive treatment without parental consent.)

* is seeking treatment for venereal disease or any other disease that must be reported to the health department

* is seeking treatment for drugs (this will vary from state to state)

Must the physician notify the parent or guardian that the minor has sought medical care? There are no legal requirements governing such situations. However, there are ethical standards prescribed by the medical profession that determine whether the parent should or should not be notified. (Some states do require notification if care is rendered.)

Do the public clinics contact the minor's parent or guardian? The health department clinics do not contact a minor's parent or guardian if a disease is reported to them. (This will vary from state to state.)

Must the health care provider investigate minor's claim that they fall into one of the categories that allows them to consent to their own care? The health care provider may usually rely on the written statement of the minor without liability, unless the hospital or physician or physician should reasonably have known of the minor's inability to consent. (This depends on state law.)