Texas: minor consent, confidentiality, and custody

Who consents to treatment

A person reaches the age of majority in Texas at eighteen. Under Family Code § 32.003, a minor may consent to their own medical treatment if they are on active military duty, are sixteen or older and living apart from their parents while managing their own financial affairs, are unmarried and pregnant (for care related to the pregnancy), or are seeking examination and treatment for drug or chemical addiction or dependency. A court may remove the disabilities of minority under Chapter 31, and a married minor is treated as an adult. Outside those cases, a parent, or the conservator the court has given the right, consents.

Counseling without a parent: Family Code § 32.004

Texas has no general rule letting a minor consent to outpatient mental health treatment. What it has is § 32.004, which lets a child of any age consent to counseling for three purposes:

• suicide prevention;
• chemical addiction or dependency; and
• sexual, physical, or emotional abuse.

A licensed or certified physician, psychologist, counselor, or social worker who has reasonable grounds to believe the child has been sexually, physically, or emotionally abused, is contemplating suicide, or is suffering from chemical or drug addiction or dependency may counsel the child without the consent of the parent, and may rely on the child's written statement of the grounds for consent. The counselor may, with or without the child's consent, advise the parent of the treatment given or needed. The parent is not liable for the cost unless the parent consents. A court order prohibiting the counseling overrides the section.

Nothing in the section covers medication. For anything outside the three purposes, including ordinary outpatient treatment of depression or anxiety, the parent or the conservator with the right to consent is the one who consents.

Inpatient and outpatient services under the Mental Health Code: Health and Safety Code § 572.001

• A person sixteen or older may request admission to an inpatient mental health facility, or request outpatient mental health services, by filing a signed written request with the facility administrator.
• A parent, managing conservator, or guardian may request admission of a minor.
• An inpatient facility may admit a sixteen- or seventeen-year-old on the parent's or conservator's request even if the minor objects, and a minor admitted on the minor's own request may be discharged on the minor's written request subject to the hold provisions that apply to all voluntary patients.

Emergency detention and court-ordered treatment of minors follow Chapters 573 and 574 and are outside the scope of this page.

What a parent is entitled to know

Mental health records are confidential under Health and Safety Code Chapter 611. A parent is ordinarily entitled to the records of a minor child, and Family Code § 153.073 gives every parent, at all times and regardless of the conservatorship order, the right of access to the child's medical, dental, psychological, and educational records and the right to consult with the treating physician, dentist, or psychologist.

Two limits apply:

1. Harm to the patient. Under § 611.0045, a professional may deny access to any part of the record if the professional determines that release would be harmful to the patient's physical, mental, or emotional health. In Abrams v. Jones (Tex. 2000), the Texas Supreme Court held that a parent's right of access under the Family Code is subject to that section, and that a parent who is not acting on behalf of the child may be denied access.
2. Counseling the child consented to under § 32.004. Where the child lawfully consented and no parental consent was required, HIPAA treats the child rather than the parent as the person who controls the protected health information for that care (45 CFR 164.502(g)(3)), although the Texas statute expressly lets the counselor inform the parent. Decide what to disclose on clinical grounds and document the reasoning.

Outside those situations, Texas does not give adolescents a general right to confidentiality from parents. Agree on confidentiality expectations with the family at the first visit.

Divorced or separated parents

Texas custody orders appoint conservators, and the order lists the rights each conservator holds. Three practical rules follow:

• Ask for the order. A sole managing conservator has the exclusive right to consent to psychiatric and psychological treatment (§ 153.132). When parents are joint managing conservators, the order must allocate that right as exclusive to one parent, independent (either parent alone), or joint (both must agree) (§ 153.134). The order tells you whether one signature is enough.
• Every parent keeps access to records and the right to consult you, under § 153.073, unless the order limits it. A conservator asking you to withhold records from the other parent is not, on their own, a basis to do so; a court order is.
• When the right is joint and the parents disagree, pause non-urgent treatment, document what each parent was told, and leave the dispute to the parents and the court rather than picking a side.

When the minor is at risk

Duty to warn. Texas has no duty to warn. In Thapar v. Zezulka (Tex. 1999) the Supreme Court declined to recognize a common-law duty to warn third parties, reasoning that the Legislature had set the policy through the confidentiality statute. That statute, Health and Safety Code § 611.004(a)(2), permits a professional to disclose confidential information to medical or law enforcement personnel if the professional determines that there is a probability of imminent physical injury by the patient to the patient or others, or immediate mental or emotional injury to the patient. The permission is the professional standard: when a patient makes a credible threat against an identifiable person, take reasonable steps, which may include hospitalization and notifying police, and document the reasoning. Warning the intended victim directly is not among the listed permitted disclosures, so route a warning through law enforcement unless institutional counsel advises otherwise.

Mandated reporting. Under Family Code § 261.101, any person who has reasonable cause to believe that a child has been abused or neglected must report immediately. A professional, meaning a licensed or certified person who in the normal course of duties has direct contact with children, including physicians, psychologists, nurses, counselors, and teachers, must report not later than the forty-eighth hour after first having reasonable cause to believe it, and may not delegate the report or rely on anyone else to make it. Reports go to the Texas Abuse Hotline at 1-800-252-5400 or through the online system, or to local law enforcement. The duty overrides privilege. Failure to report is a class A misdemeanor, and a state jail felony if the person intended to conceal the abuse.

Hospitalization. See the inpatient section above.

School records

A school's records about a student, including records from a school counselor or school-based clinician employed by the district, are governed by FERPA rather than HIPAA, and parents have rights of access under FERPA until the student turns eighteen. Records a school receives from an outside clinician become part of the education record once filed. Send the school what it needs to act, not the full evaluation.