F. Medical Consent

Generally, health care providers require someone with the legal authority to consent to medical care for a child to provide informed consent for the child before the health care provider will initiate care. Texas law requires the court to specifically authorize an individual or DFPS to consent to medical care for each child in DFPS conservatorship. Tex. Fam. Code §§ 153.371-153.377 and Tex. Fam. Code § 266.004(c) provide the legal bases for DFPS' authority to make medical decisions for children and youth in DFPS conservatorship. When the court authorizes DFPS to consent to the child's medical care, the caseworker must designate a medical consenter, a backup medical consenter, and coordinate medical information. It is the responsibility of the medical consenter and backup medical consenter to become knowledgeable of the child's medical condition, known medical history, and medical needs before consenting to medical care or treatment.

1. Informed Consent

Medical consent means making a decision on whether to agree to or not agree to a medical test, treatment, procedure, or a prescription medication. Informed consent means the medical consenter gets complete information about the proposed medical care to provide an understanding of the benefits and risks of the treatment before making a decision. The goal is to make sure that the “medical consenter” makes an informed decision about the child's health care.

Before consenting to any 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 if the treatment is not applied; and

•   The side effects and risks associated with the treatment. Tex. Fam. Code § 266.004(h); CPS Policy Handbook §11130.

Special Issue: A person otherwise authorized to consent to the immunization of a child may not consent for the child if the person has actual knowledge that a parent, managing conservator, guardian, or other person who under the law of another state or a court order may consent for the child and has expressly refused to give consent to the immunization, has been told not to consent for the child, or has withdrawn a prior written authorization for the person to consent. Tex. Fam. Code § 32.101(c).

2. Choosing a Medical Consenter

When a judge gives DFPS the authority to consent to medical care for a child in conservatorship, the agency designates up to four primary and backup medical consenters to make health care decisions for the child. The two primary medical consenters are usually the child's caregivers or a caseworker and another CPS staff. The goal of designating multiple consenters is to ensure that a consenter can be present in person when the child receives treatment. This is particularly important when the child is being prescribed psychotropic medications.

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;

•   Parents whose rights have not been terminated, if in child's best interest.

Medical consenters and backup medical consenters must be individuals, not a facility or a facility's shift staff. DFPS may not choose medical consenters and backup medical consenters who are employees of staffed facilities such as Residential Treatment Centers (RTCs) or intermediate care facilities for individuals with developmental disabilities. CPS caseworkers are usually designated in these cases.

Once the caseworker designates a medical consenter, and the medical consenter meets training requirements, the caseworker must issue Form 2085-B Designation of Medical Consenter (which provides authorization to consent to medical care) to the medical consenter and backup medical consenter, all of whom must sign the form. The CPS caseworker must consent to medical care until a medical consenter and backup medical consenter have been designated and have signed the form.

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.

In some cases, the court allows a youth 16 or 17 years old to be their 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) and Tex. Fam. Code § 264.121.

DFPS requires both designated primary medical consenters (including youth designated by the court as their own medical consenter) and backup medical consenters to complete the following two department-approved trainings before being allowed to make medical or health care decisions:

•   DFPS Medical Consent Training for Caregivers; and

•   DFPS Psychotropic Medication Training.

3. Informed Consent for Psychotropic Medications

Texas law requires the medical consenter to attend all appointments with the health care provider when a child may be prescribed psychotropic medication. The medical consenter must always have a complete discussion with the child's healthcare provider in order to consider options for the child or youth that do not involve medication before or at the same time as using psychotropic medication. 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.

Texas law requires medical consenters to assure that the child prescribed a psychotropic drug has an office visit with the prescribing healthcare provider at least once every 90 days to allow the practitioner to:

•   Appropriately monitor for side effects of the medicine;

•   Decide whether the medicine is helping the child; and

•   Decide whether continuing the medicine is recommended for the child. Tex. Fam. Code § 266.011.

The medical consenter must attend these medical appointments with the child and provide documentation of the medical appointment to the caseworker by the next business day.

4. Guidance for Youth Who are Their Own Medical Consenter

If a court determines that a youth is capable of consenting to their own medical care, the caseworker must:

•   Educate the youth about their medical care and the process for making informed decisions on an ongoing basis;

•   Ensure the youth completes the DFPS Medical Consent Training for Caregivers;

•   Ensure a youth who has been prescribed psychotropic medication, or is considering taking psychotropic medication, completes the DFPS Psychotropic Medication Training; and

•   Offer ongoing support and guidance to the youth.

Before a youth reaches age 16, DFPS must advise the youth of the right to request a hearing to determine whether he or she may be authorized to consent to their own medical care. DPFS provides the youth with training on informed consent and the provision of medical care as part of the Preparation for Adult Living (PAL) program. Tex. Fam. Code § 266.010(l).

Youth in DFPS conservatorship who are not authorized by the court to be their own medical consenters at age 16 or 17 will become their own medical consenters when they turn 18. Conservatorship caseworkers must ensure that 17-year-old youth complete the DFPS Medical Consent Training for Caregivers and DFPS Psychotropic Medication Training if the youth has prescription psychotropic mediations, no later than 90 days before becoming 18 years of age.

Tex. Fam. Code § 264.121(g) requires DFPS to ensure that the youth's transition plan includes provisions to assist the youth in managing the use of any 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;

•   Informed consent; and

•   The youth's right to request to be their own medical consenter. Tex. Fam. Code § 264.121(g)(1).

For youth 17 or older taking medication, DFPS must ensure the youth's transition plan includes a program supervised by a health care professional to assist the youth with independently managing their medication. Tex. Fam. Code § 264.121(g)(2).

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

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

•   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 to 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).