Texas Law, CPS, and Medicine

A friend of mine recently shared this blog post on Facebook. It shares the story of a family who found themselves dealing with CPS and the FDA, after they told the first doctor they wanted a second opinion about their son’s cancer. It’s definitely a chilling account. I was inspired by this post to Google CPS, and this is what I found concerning CPS in Texas. Unless otherwise noted, all of the quotes below come from Section 261 of the Texas Family Code. All emphases are mine. I was specifically looking for parts of the law which talked about medicine, doctors, etc. – in other words, parts which would have affected the family in the blog post.

The law code begins with definitions of abuse and neglect, including:

(4)  “Neglect” includes: …(B)  the following acts or omissions by a person: …(ii)  failing to seek, obtain, or follow through with medical care for a child, with the failure resulting in or presenting a substantial risk of death, disfigurement, or bodily injury or with the failure resulting in an observable and material impairment to the growth, development, or functioning of the child;”

Yes, it is possible to get CPS called on you for medical reasons. I can easily see how refusing traditional medical treatment in favor of alternative treatments could cause the doctor to call CPS on you.

Why would the doctor call CPS on you? Doctors, along with quite a few other people, are required by law to report any suspected abuse or neglect:

Sec. 261.101.  PERSONS REQUIRED TO REPORT; TIME TO REPORT.

(a) A person having cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter.

(b)  If a professional has cause to believe that a child has been abused or neglected or may be abused or neglected, or that a child is a victim of an offense under Section 21.11, Penal Code, and the professional has cause to believe that the child has been abused as defined by Section 261.001 or 261.401, the professional shall make a report not later than the 48th hour after the hour the professional first suspects that the child has been or may be abused or neglected or is a victim of an offense under Section 21.11, Penal Code.  A professional may not delegate to or rely on another person to make the report.  In this subsection, “professional” means an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children.  The term includes teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers.

(c)  The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, and an employee of a clinic or health care facility that provides reproductive services.

If the doctor does not report possible abuse, he or she is susceptible to criminal penalties:

Sec. 261.109.  FAILURE TO REPORT; PENALTY. (a) A person commits an offense if the person has cause to believe that a child’s physical or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report as provided in this chapter.

(b)  An offense under this section is a Class A misdemeanor, except that the offense is a state jail felony if it is shown on the trial of the offense that the child was a person with mental retardation who resided in a state supported living center, the ICF-MR component of the Rio Grande State Center, or a facility licensed under Chapter 252, Health and Safety Code, and the actor knew that the child had suffered serious bodily injury as a result of the abuse or neglect.

There are some protections for parents, however. This code specifically allows parents to refuse mental health treatment, in some situations:

Sec. 261.111.  REFUSAL OF PSYCHIATRIC OR PSYCHOLOGICAL TREATMENT OF CHILD. (a) In this section, “psychotropic drug” means a substance that is:

(1)  used in the diagnosis, treatment, or prevention of a disease or as a component of a medication; and

(2)  intended to have an altering effect on perception, emotion, or behavior.

(b)  The refusal of a parent, guardian, or managing or possessory conservator of a child to administer or consent to the administration of a psychotropic drug to the child, or to consent to any other psychiatric or psychological treatment of the child, does not by itself constitute neglect of the child unless the refusal to consent:

(1)  presents a substantial risk of death, disfigurement, or bodily injury to the child; or

(2)  has resulted in an observable and material impairment to the growth, development, or functioning of the child.

That second clause worries me – I could see parents who have refused ADHD treatment, for example, being told that their refusal has caused such consequences in their child, when in reality it’s in the eye of the beholder. But still, in general, parents can decide to forego mental health treatment and medicines for their children as minors. This is a good thing, as I believe there are still a lot of questions about whether or not such treatments are good for children. Of course, they can be, but all children are different.

Also, parents are allowed to refuse vaccinations:

Sec. 38.001.  IMMUNIZATION; REQUIREMENTS; EXCEPTIONS. (a) Each student shall be fully immunized against diphtheria, rubeola, rubella, mumps, tetanus, and poliomyelitis, except as provided by Subsection (c).

(c)  Immunization is not required for a person’s admission to any elementary or secondary school if the person applying for admission:

(1)  submits to the admitting official:

(A)  an affidavit or a certificate signed by a physician who is duly registered and licensed to practice medicine in the United States, in which it is stated that, in the physician’s opinion, the immunization required poses a significant risk to the health and well-being of the applicant or any member of the applicant’s family or household; or

(B)  an affidavit signed by the applicant or, if a minor, by the applicant’s parent or guardian stating that the applicant declines immunization for reasons of conscience, including a religious belief;

(source: Texas Education Code, Sec. 38.001)

This exemption also applies to college students in regards to the bacterial meningitis requirement:

(d)  A student to whom this section applies or a parent or guardian of the student is not required to comply with Subsection (c) if the student or a parent or guardian of the student submits to the institution:

(1)  an affidavit or a certificate signed by a physician who is duly registered and licensed to practice medicine in the United States in which it is stated that, in the physician’s opinion, the vaccination required would be injurious to the health and well-being of the student; or

(2)  an affidavit signed by the student stating that the student declines the vaccination for bacterial meningitis for reasons of conscience, including a religious belief, except that the exemption provided by this subdivision does not apply during a disaster or public health emergency, terrorist attack, hostile military or paramilitary action, or extraordinary law enforcement emergency declared by an appropriate official or other authority and in effect for the location of the institution the student attends.

(source: Sec. 51.9192 of the Texas Higher Education Code)

There may also be other protections in the law for parents to refuse treatment, etc., but I’ve run out of time to do research right now – so I’ll do it later, and write another post about what I find.

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