What is Medical Consent?
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.
What is 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 the best 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.
How Is Informed Consent Given 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.
- Texas Family Code §266.0042
When consenting to a new psychotropic medication, DFPS Form 4526, Psychotropic Medication Treatment Consent must be completed and signed by the medical consenter and the health-care provider or designee. This form is completed only when consenting to new psychotropic medications. The medical consenter discusses with the provider any non-pharmacological interventions (non-medication options) to the medication and asks questions the medical consenter has about the above elements of informed consent. The Medical Consenter has this discussion with the provider at both initial and follow-up appointments. To understand more about non-pharmacological alternatives, read Considering Non-Pharmacological Options Before or Along with Psychotropic Medications
How is a Medical Consenter Chosen?
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 upto four primary and backup medical consenters. The two primary medical consenters are usually the child's live-in 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
- CPS caseworkers, supervisors or other CPS staff
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.
DFPS appoints medical consenters and backup medical consenters by issuing Form 2085-B (Designation of Medical Consenter) to the medical consenter and other caregivers when the child is placed. This form has important information about medical care and STAR Health. These medical consenters and backups must provide copies of Forms 2085-B to each child's doctors or other health-care providers. Form 2085-B contains contact information for CPS supervisors and the court in case the health-care provider has issues with the decision(s) of a medical consenter.
DPFS may decide to change a child's medical consenter or backup medical consenter for a variety of reasons by issuing another Form 2085-B and notifying the court.
- In some cases the court allows a youth 16 or 17 years old to be his or her own medical consenter, if they meet other requirements.
- Attorney 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. §107.003 (a) (3)(G)(b)(3)Texas Family Code
- This request can happen at any hearing after the youth turns 16 years old. The court decides if a youth may consent to all, some, or none of his or her medical care.
- When the court allows a youth to consent to medical care, DFPS staff, the youth or the youth's caregivers will have a copy of the court order.
What Training Should a Medical Consenter Take on Informed Consent?
Medical consenters and backup medical consenters must complete DFPS Medical Consent Training for Caregivers whether they are chosen by the court or by DFPS. Mandatory training is available on the DFPS Intranet for DFPS staff and on the DFPS Public Website for all other medical consenters and backups. This training is required initially in order to be named as a medical consenter, and then annually thereafter.
The training is available in English and Spanish. To see the training, go to:
- Medical Consent Training for Caregivers
- En Español: Capacitación sobre el consentimiento informado para personas que no trabajan para el DFPS
What Training is required for Informed Consent to Psychotropic Medications ?
Medical Consenters and caregivers for children who may be prescribed psychotropic medication must successfully complete Psychotropic Medication for Children in Foster Care training and provide documentation of completion to the child's caseworker. Successful completion means the medical consenter completes the training and passes the post-test. This training is required annually.
The training is available in English and Spanish. To see the training, go to:
Medical Consent Training for Youth
There are two types of medical consent training for youth.
- DFPS Medical Consent Training for Caregivers 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 youth have completed required training must be sent by email or mail to the caseworker within 5 days of completion.
When a youth 16 or 17 years old is authorized by the court as his or her own medical consenter, the youth must complete DFPS Medical Consent Training for Caregivers within seven days of the court order.
If the youth has a scheduled medical or behavioral health appointment before the seven day deadline for training, the youth must complete the training at least 48 hours before the appointment. Training is not required before an emergency appointment.
If the youth who has been authorized as his or her own medical consenter by the court is taking or considering psychotropic medication, he or she must also complete the Psychotropic Medication for Children in Texas Foster Care training within seven days of the court order.
Again, If the youth has a scheduled medical or behavioral health appointment before the seven day deadline for training, the youth must complete the training at least 48 hours before the appointment. Training is not required before an emergency appointment.
Guidance and Support for Youth who are their own Medical Consenter
The youth's caseworker and caregivers are required to 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.
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.