E. Medical Consent

Before a child may receive medical treatment, consent is required. In 2005, Texas passed a law that requires each child in DFPS conservatorship to have a medical consenter. The responsibility of this medical consenter is to provide medical consent. Medical consent means making a decision on whether to agree or not agree to a medical test, treatment, procedure, or a prescription medication.

1. Informed Consent

Informed consent means the medical consenter gets complete information about the proposed medical care before making a decision. The goal is to make sure that the medical consenter makes an informed decision about the child's health care.

When permission is given for health-care, the Medical Consenter must make sure he or she understands:

•   The child’s symptoms and medical diagnosis.

•   How the treatment will help the condition.

•   What happens without the treatment?

•   The side effects and risks associated with the treatment.

2. Choosing a Medical Consenter

The court will name (authorize) either an individual or DFPS as the medical consenter.

The individual may be a relative or someone involved in the child's life. When the court names an individual as medical consenter, that person is ultimately responsible for the medical decisions for that child and reports directly to the court. When a judge gives DFPS the power to consent to medical care for a child, the agency chooses up to four primary and backup medical consenters. The two primary medical consenters are usually the child's caregivers or a caseworker and another CPS staff.

DFPS may choose medical consenters and backup medical consenters who are:

•   Professional employees of emergency shelters

•   Foster parents

•   Relatives

•   CPS caseworkers, supervisors or other CPS staff

•   Parent whose rights have not been terminated, if in child’s best interest

DFPS may not choose medical consenters and backup medical consenters who are employees of staffed facilities such as residential treatment centers or intermediate care facilities for individuals with developmental disabilities. CPS caseworkers are usually designated in these cases.

In some cases, the court allows a youth 16 or 17 years old to be his or her own medical consenter, if other requirements are met. Tex. Fam. Code § 266.010.

Attorneys ad litem and DFPS staff are required to inform 16 and 17 year olds in foster care of their right to ask the court whether they can consent to their own medical care. Tex. Fam. Code § 107.003(b)(3).

There are two types of medical consent training for youth:

•   DFPS Medical Consent Training for Caregiver - All youth must complete this training before they become 18 years old.

•   DFPS Psychotropic Medication Training – Youth who are taking psychotropic medications must complete this training before they are 18 years old.

Documentation that a youth has completed the required training should be filed in the youth’s file by the caseworker.

3. Informed Consent for Psychotropic Medications

The medical consenter must always have a complete discussion with the child's health-care provider. According to Texas law, consent to giving a psychotropic medication is valid only if:

•   It is given voluntarily and without undue influence, and

•   The consenter receives information (given verbally or in writing) describing:

◦   the specific condition to be treated;

◦   the beneficial effects on that condition expected from the medication;

◦   the probable health and mental health consequences of not consenting to the medication;

◦   the probable clinically significant side effects and risks associated with the medication;

◦   the generally accepted alternative medications and non-pharmacological interventions to the medication, if any; and

◦   the reasons for the proposed course of treatment. Tex. Fam. Code § 266.0042.

4. Guidance for Youth Who are Their Own Medical Consenter

Tex. Fam. Code § 264.121 requires, for a youth taking prescription medication, DFPS to ensure that the youth’s transition plan includes provisions to assist the youth in managing the use of the medication and in managing the child’s long-term physical and mental health needs after leaving foster care, including provisions that inform the youth about:

•   The use of the medication;

•   The resources that are available to assist the youth in managing the use of the medication; and

•   Informed consent and the provision of medical care in accordance with Tex. Fam. Code § 266.010(1). Tex. Fam. Code § 264.121(g).

The youth's caseworker and caregivers should help the youth get information about any medical condition(s), tests, treatment, and medications, and to support them in making informed decisions.

If a youth's healthcare decision puts the youth at risk for harm, the court can overrule a youth's decision to refuse medical care even after authorizing the youth to make medical decisions. To do that the court must find by clear and convincing evidence that the medical care is in the best interest of the youth and one of the following:

•   The youth lacks the capacity to make the decision.

•   Not getting the care will result in observable and material impairment of growth, development, or functioning of the youth.

•   The youth is at risk of causing substantial bodily harm to self or others. Tex. Fam. Code § 266.010(g)(1)-(3).

In these situations, DFPS may file a motion asking the court to order a specific medical treatment or allow DFPS to consent to medical care for the youth. The motion must include the youth's reasons for refusing medical care and a statement signed by the physician explaining why medical care is necessary. Tex. Fam. Code § 266.010(d)-(e).