Texas Child Protection Law Bench Book

Updated September 2025

F. Medical Consent

Generally, healthcare providers require someone with the legal authority to consent to medical care for a child to provide informed consent for the child before the healthcare 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 understand:

•   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. See Tex. Fam. Code § 266.004(h); CPS Policy Handbook § 11130.

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/or backup medical consenters to make healthcare 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 live-in caregivers with knowledge of the child's medical history and needs:

•   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), emergency shelters, 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 healthcare decisions:

•   DFPS Medical Consent Training for Caregivers; and

•   DFPS Psychotropic Medication Training.

3. Temporary Medical Consenters

There are times when medical consent is required for a youth in foster care and the DFPS staff identified as a medical consenter is unavailable.^[117] Temporary back up medical consenters are allowed for all medical reasons, not just psychotropic medication. Temporary back up medical consenters can be identified when primary and back up medical consenters cannot provide consent for the following reasons:

•   Timely notice of the appointment was not received;

•   They are unable to be present due to illness or unforeseen circumstances; or

•   An emergency existed where immediate treatment is needed and a delay in medical or psychiatric care could put the child in danger.

In these instances, DFPS and SSCC staff members may be identified as temporary medical consenters to medical treatment, hospital admission, and prescription medications. To provide this consent, they must prepare for the appointment by reviewing the child's condition, current medications, and response to treatment.

4. Informed Consent for Psychotropic Medications

Texas law requires the medical consenter to attend all appointments with the healthcare 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.

5. 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 reaching age 16, DFPS must advise the youth of the right to request a hearing to determine whether the youth 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 have 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 years or older taking medication, DFPS must ensure the youth's transition plan includes a program supervised by a healthcare 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).

6. Assumption of Financial Responsibility by Medical Consenters

During the 89^th Regular Legislative Session, a bill added Tex. Fam. Code § 266.0043 providing for the authority of child's medical consenter to access and obtain certain care, to include behavioral health services, for foster children. Effective September 1, 2025, a person, other than DFPS, who is authorized by a court to consent to medical care for a child in foster care, may assume financial responsibility for medical care, including behavioral health services, provided to a child in foster care by an out-of-network provider engaged by the medical consenter on behalf of the child. For that purpose, assuming financial responsibility may include the medical consenter enrolling the child in a health insurance plan. DFPS would not be liable for the cost of such care, unless a court orders DFPS to cover the cost of the medical care. The assumption of financial responsibility authorized by this section of the family code may not be construed to:

•   Limit or restrict a foster child's access to Medicaid benefits, including in-network benefits provided under the Medicaid managed care program;

•   Change or limit the rights of parents of children in the temporary managing conservatorship of DFPS; or

•   Limit a court's authority to order DFPS to assume financial responsibility for the cost of services provided to a foster child by an out-of-network provider.

A medical consenter is required, not later than the 10^th business day after the date medical care for which the consenter assumes financial responsibility is provided, to notify the child's caseworker of the provision of that care in the form and manner prescribed by DFPS. DFPS is required to ensure the child's health passport included records of the medical care provided.

A Medicaid Managed Care Organization (MCO) is prohibited from taking adverse action to prevent or discourage a recipient from accessing health care and related services and benefits in accordance with Tex. Fam. Code § 266.0043. STAR Health program managed care is required to contract between a Medicaid MCO and the Health and Human Services Commission to require that the MCO comply with that prohibition against taking adverse action. Nothing can be construed to confer liability on a Medicaid MCO for the cost of health care and related services provided to a child in foster care by an out-of-network provider engaged by a medical consenter on behalf of the child. Tex. Govt. Code § 540.0807.