AGO 1951 No. 73 - Jun 18 1951
MENTAL INSTITUTIONS ‑- CONSENT FOR OPERATIONS ON INMATES ‑- WITHDRAWAL OF WHOLE BLOOD
Consent of the parents or legal guardian should be obtained before surgery is performed on mentally deficient youth residing in our state institutions.
If the parents or legal guardians are not available, then a legal guardian should be appointed over the person of the youth by the Superior Court, and the consent of this guardian obtained for an operation. The same applies to withdrawal of whole blood.
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June 18, 1951
Honorable H. D. Van Eaton, Director
Department of Public Institutions
Olympia, Washington Cite as: AGO 51-53 No. 73
Attention: !ttMr. Van R. Hinkle
We have received your letter of December 21, 1950 in which you asked the following questions:
1. Can superintendents of our state institutions for mentally deficient youth, namely, Rainier State School and Lakeland Village, order necessary surgery for children without consent of the parents or legal guardian?
2. Is the consent of the juvenile court, which committed the child, necessary for a surgical operation, in those cases where a parent or guardian is not available?
Our conclusion may be summarized as follows:
Consent of the parents or legal guardian should be obtained before surgery is performed on mentally deficient youth residing in our state institutions. If the parents or legal guardians are not available, then a legal guardian [[Orig. Op. Page 2]] should be appointed over the person of the youth by the superior court, and the consent of this guardian obtained for an operation. The same applies to withdrawal of whole blood.
In your request for this opinion you have assumed that the removal of whole blood was tantamount to a surgical operation. This opinion takes the position that the same rules of law are applicable to the two situations. Taman v. Schultz, 19 Pa.D.&C. 309.
Section 8, page 484, Laws of 1890 (Rem. Rev. Stat. 6923) sets out the powers of the superintendent of the named institutions. This section provides in part that the superintendent "shall have entire control of the medical * * * treatment of the patients." In discussing this quoted portion of the statute, a former opinion of this office, dated August 7, 1942, addressed to David E. Lockwood, Director, Department of Finance, stated that "it is equally true that he (superintendent of a state hospital), is not ex-officio the legal guardian of the patient to the extent that he may consent to any operation in the patient's name and despite the patient's objection."
In re Hudson, 13 Wn. (2d) 673, 126 P. (2d) 765, states:
"It is a well-established rule that a surgical operation may not be performed on a person until the patient, if sui juris, consents thereto, or, in the case of an incompetent, no operation may be performed by a surgeon upon such person until the guardian of that incompetent consents to the operation; and, if an infant, no operation may be performed until consent is first obtained of the natural guardian or of one standing inloco parentis to the infant."
In Pennsylvania it has been held that even in an emergency a physician cannot remove whole blood from an infant without the consent of the parents of the infant. Taman v. Schultz, 19 Pa.D.&C. 309.
There is no statutory provision or common law rule which gives the superintendent, unless so appointed by the superior court, the right to stand inloco parentis to youth committed to state mental institutions.
[[Orig. Op. Page 3]]
An opinion of this office dated June 15, 1945 to Rogan Jones, Director of the Department of Finance, states that a state department may not act as a guardian without express statutory authority. The same rule would apply to a state institution, and logically, to the director or supervisor, acting in his official capacity, of such department or institution. Thus, if the youth has no parents nor legal guardian, a legal guardian should be appointed for the youth.
The opinion of this office dated August 25, 1950, addressed to H. D. Van Eaton [[Opinion No. 49-51-326)]], authorizing the administration of shock treatments, cannot be considered in point here. Such treatment is the recognized method of caring for, and treating, mental patients, and is in furtherance of the governmental function of the state. Chester Co. etc., et al. v. Commonwealth, 341 Pa. 49, 17 Atl. 212. An operation or the withdrawal of whole blood is not for the benefit of the inmate as a mental patient.
Enclosed is the file which you requested that we return.
Very truly yours,
LEO H. FREDRICKSON
Assistant Attorney General