The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6823

November 29, 1994

CORRECTIONS:

Providing medical care to minor prisoners in the custody of the Michigan Department of Corrections

The Michigan Department of Corrections is required to obtain the consent of a parent or guardian of a prisoner in its custody who is under the age of eighteen before that prisoner may be provided with medical care if the parent or guardian can be promptly located by the Department. As set forth below, the Legislature has enacted several specific statutory exceptions to this general requirement.

MCL 333.5127(1); MSA 14.15(5127)(1), which allows minors to consent to the provision of medical or surgical care, treatment or services by a hospital, clinic or physician if the minor is or professes to be infected with a venereal disease or HIV, applies to minors in the custody of the Michigan Department of Corrections.

MCL 333.9132(1); MSA 14.15(9132)(1), which, among other things, allows minors to consent to the provision of prenatal and pregnancy related health care, applies to minors in the custody of the Michigan Department of Corrections.

The Michigan Department of Corrections is not required to obtain consent in those situations where it tests or examines minor prisoners in conformity with statutory provisions mandating the tests and examinations for all prisoners.

Mr. Kenneth L. McGinnis

Director

Michigan Department of Corrections

Grandview Plaza Building

Post Office Box 30003

Lansing, MI 48909

You have asked several questions regarding the provision of medical services to minors in the custody of the Michigan Department of Corrections (MDOC). You first ask if the MDOC is required to obtain the consent of a parent or guardian of a prisoner in its custody who is under the age of eighteen (18) before that prisoner may be provided with medical care.

In 1993 PA 257 the Legislature added a new subsection (e) to MCL 722.4(2); MSA 25.244(4)(2). That subsection directly addresses providing medical care to minors under the jurisdiction of the MDOC as follows:

(2) An emancipation occurs by operation of law under any of the following circumstances:

(e) For the purposes of consenting to his or her own preventive health care or medical care including surgery, dental care, or mental health care, except vasectomies or any procedure related to reproduction, during the period when the minor is a prisoner under the jurisdiction of the department of corrections ... but only if a parent or guardian of the minor cannot promptly be located by the department of corrections.

With the passage of this amendment, the Legislature has specifically provided that if the MDOC is unable to contact a parent or guardian of a minor prisoner promptly, that minor prisoner is considered emancipated for the purpose of consenting to his or her own preventive health care or medical care including surgery, dental care or mental health care, except vasectomies or any procedure related to reproduction. Thus, it is necessary for the MDOC to obtain the consent of a parent or guardian of a prisoner who is under the age of 18 before the prisoner can be provided with medical, dental or mental health treatment only if the parent or guardian can be promptly located by the MDOC. If the parent or guardian cannot be promptly located by the MDOC, then the minor in the custody of the MDOC is emancipated for the purpose of consenting to his or her own health care with the exception of reproduction-related health care noted above.

It is my opinion, therefore, in answer to your first question, that the MDOC is required to obtain the consent of a parent or guardian of a prisoner in its custody who is under the age of eighteen before that prisoner may be provided with medical care if the parent or guardian can be promptly located by the MDOC. As set forth below, the Legislature has enacted several specific statutory exceptions to this general requirement.

Your second question is whether MCL 333.5127(1); MSA 14.15(5127)(1), which allows minors to consent to the provision of medical or surgical care, treatment or services by a hospital, clinic or physician if the minor is or professes to be infected with a venereal disease or HIV, applies to minors in the custody of the MDOC. This statute provides:

(1) Subject to section 5133, the consent to the provision of medical or surgical care, treatment, or services by a hospital, clinic, or physician that is executed by a minor who is or professes to be infected with a venereal disease or HIV is valid and binding as if the minor had achieved the age of majority. The consent is not subject to later disaffirmance by reason of minority. The consent of any other person, including a spouse, parent or guardian, or person in loco parentis, is not necessary to authorize the services described in this subsection to be provided to a minor.

This statute contains no exceptions for minors of differing custodial status. It is written to apply to all minors who are or profess to be infected with venereal disease or HIV, including those minors who are prisoners of the MDOC. The policy of encouraging minors to seek treatment for venereal disease or HIV is equally applicable to minor prisoners of the MDOC. Finally, this statute has not been modified by the 1993 amendment to MCL 722.4(2); MSA 25.444(4)(2). The purpose of that amendment was to broaden rather than to restrict the opportunities for minors under the jurisdiction of the MDOC to consent to their own medical care. Senate Legislative Analysis, SB 498, February 15, 1994.

It is my opinion, therefore, in answer to your second question, that MCL 333.5127(1); MSA 14.15(5127)(1), which allows minors to consent to the provision of medical or surgical care, treatment or services by a hospital, clinic or physician if the minor is or professes to be infected with a venereal disease or HIV, applies to minors in the custody of the MDOC.

Your third question is whether MCL 333.9132(1); MSA 14.15(9132)(1), which, among other things, allows minors to consent to the provision of prenatal and pregnancy related health care, applies to minors in the custody of the MDOC. That statutory section provides, in pertinent part:

(1) If a minor consents to the provision of prenatal and pregnancy related health care or to the provision of health care for a child of the minor by a health facility or agency licensed under article 17 [MCL 333.20101, et seq; MSA 14.15(20101) ] or a health professional licensed under article 15 [MCL 333.16101, et seq; MSA 14.15(16101) ], the consent shall be valid and binding as if the minor had achieved the age of majority. The consent is not subject to later disaffirmance by reason of minority. The consent of any other person, including the putative father of the child or a spouse, parent, guardian, or person in loco parentis, is not necessary to authorize the provision of health care to a minor or to a child of a minor.

Again, this statute contains no exception for minors of different custodial status. It is written to apply to all minors who require prenatal and pregnancy related health care. The policy of encouraging minors to seek prenatal and pregnancy related health care is equally applicable to minor prisoners of the MDOC. Further, this statute has not been modified by the 1993 amendment to MCL 722.4(2); MSA 25.444(4)(2).

It is my opinion, therefore, in answer to your third question, that MCL 333.9132(1); MSA 14.15 (9132)(1), which, among other things, allows minors to consent to the provision of prenatal and pregnancy related health care, applies to minors in the custody of the MDOC.

Your fourth question is whether the MDOC is required to obtain consent in those situations where it tests or examines minor prisoners in compliance with statutory provisions mandating the tests and examinations for all prisoners.

In MCL 791.267(2); MSA 28.2327(2), the Legislature has mandated that "each incoming prisoner shall undergo a test for HIV or an antibody to HIV."

In MCL 791.267(1); MSA 28.2327(1), the Legislature has mandated physical and psychiatric examinations for prisoners:

(1) Quarters for temporary confinement apart from those of regular inmates shall be provided for convicted prisoners upon commitment at each of the state correctional facilities, which the commission shall designate as a reception center. Within 60 days after the arrival of a convicted prisoner at such a state correctional facility, the classification committee shall make and complete a comprehensive study of the prisoner, including physical and psychiatric examinations, to ensure that the prisoner is confined in the state correctional facility suited to the type of rehabilitation required in his or her case.

Both of the above-quoted statutory provisions apply to prisoners with no exception for minor prisoners. The Legislature has expressly mandated these tests and examinations without any provision for obtaining the consent of the prisoners.

It is my opinion, therefore, in answer to your fourth question, that the MDOC is not required to obtain consent in those situations where it tests or examines minor prisoners in conformity with statutory provisions mandating the tests and examinations for all prisoners.

Frank J. Kelley

Attorney General