Case Information
*1 The Attorney General of Texas
September 24, 1980
Attorney General
Honorable John J. Kavanagh, M.D. Opinion No. MW-24 8 Commissioner Re: Means by which the Depart-
Texas Department of Mental ment of Mental Health and Mental Health & Mental Retardation can obtain consent for P. 0. Box 12668, Capitol Station of patients or Austin, Texas residents Dear Mr. Kavanagh:
Your question concerns article 3174b-2, V.T.C.S., which provides, in pertinent part:
The Board of Texas State Hospitals and Special Schools. . . shall provide recognized medical or services to persons admitted or committed to its care. Where the consent of any person or guardian is considered necessary, is requested, and such person or guardian shall fail to immediately reply thereto, the performance or provision for the shall be ordered by the superintendent the advice and consent of three (3) medical doctors, at least one of whom must principally be engaged in the private practice of medicine. Where there is no guardian or relative to whom request can be made, end operation on the advice and consent of three (3) physicians licensed by the State Board of Medical Examiners.
Acts 1955, 54th Leg., ch. 54, §l, at 86. The Board of Texas State Hospitals and Special Schools was abolished in 1965 and replaced the Texas by Department of Mental Health and Mental Retardation. Acts 1965, 59th Leg., ch. 67, SSl, 2, at 165. You ask whether 3174b-2 authorizes a superintendent of a Department of Mental Health end Mental Retardation facility to order dental and services for persons committed thereto upon the advice and consent of three dentists.
In instances where consent is considered necessary but no guardian or responsible
p. 782 *2 (MW-248) - Page Two the facility exists, article 3174b-2 provides that treatment only the advice and consent of three physicians “licensed by the State Board of Medical Examiners?’ are not licensed by the State Board of Medical Examiners, article 4504a, V.T.C.S., but instead are licensed by the State Board of Dental Examiners. Article 4543, et., V.T.C.S. Accordingly, we conclude that dentists may not provide the necessary consent to treatment when no guardian or to the facility exists.
When the consent of the person committed to the facility or his guardian has been requested, but no immediate response is forthcoming, article 3174&2 provides that treatment shall be ordered only with the consent of three “medical doctors, at least one of whom must principally be engaged in the private practice of medicine.” The question is whether the legislature, by specifying “medical doctor” in this instance and “physician licensed by the State Board of Medical Examiners” elsewhere, intended to distinguish between the two. In other words, may a dentist, although not licensed by the Board of Medical Examiners, nevertheless qualify as a “medical doctor” and thereby be eligible to provide consent to treatment in this instance? We think not. Although a plausible argument can be made that the use of different terminology indicates that “medical doctor” should be interpreted more broadly than “physician licensed by the State Board of Medical Examiners,” we do not think a court would bold that the term is broad enough to include dentists, at least for purposes of 3174b-2. Physicians end dentists sre governed by different agencies regulated by different statutes, and we think this evidences a clear intention to distinguish between them. Moreover, we can see no reason why dentists should be eligible to provide consent in this instance when they clearly may not provide consent when IX) guardian or responsible relative exists. Thus, we conclude that dentists are not “medical doctors” within the meaning of article 3174b-2, and that they may not consent to dental treatment under the circumstances described above.
This does not mean that article 3174b-2 renders superintendents powerless to provide necessary to patients and residents of their facilities when has not or cannot be obtained. To construe article 3174&2 in such a manner es to prevent from being administered because there is, effectively, no one to provide consent would be, in our judgment, to reach an unduly harsh result. Article 3174b-2 directs the Department of Mental Health end Mental to “provide recognized medical to persons admitted or committed its care,” and we think medical necessarily embraces dental care. See, 3, Little v. Little, 576 S.W. 2d 493 (Tex. Civ. App. - San Antonio 1979, no writr When dental services are deemed necessary, therefore, it is our opinion that the superintendent may provide such care with the consent of three physicians licensed by the State Board of Medical Examiners, so long as the other provisions of article 3174b-2 are met, even though the services themselves would be performed by dentists.
SUMMARY
Article 3174b-2, V.T.C.S., prohibits dentists from consenting
to dental of persons under the care of a Department *3 . z - Page Three (NW-248)
of Mental Health and Mental Retardation facility.
may provide dental or services, however, provided is obtained from three physicians licensed by the State Board of Medical Examiners end all other conditions of article 3174b-2 are satisfied.
Attorney General of Texas JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY 111
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
Susan Garrison, Acting Chairman
Jon Bible
Rick Gilpin
Barbara Marquardt