Texas 2009 - 81st Regular

Texas Senate Bill SB1520 Compare Versions

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1	1	By: Shapleigh S.B. No. 1520
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the protection and care of individuals with mental
7	7	retardation residing in certain residential care facilities.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 592.038, Health and Safety Code, is
10	10	amended by adding Subsection (d) to read as follows:
11	11	(d) Each client has the right to refuse psychoactive
12	12	medication, as provided by Subchapter E.
13	13	SECTION 2. Subsection (b), Section 592.054, Health and
14	14	Safety Code, is amended to read as follows:
15	15	(b) Notwithstanding Subsection (a), consent is required
16	16	for:
17	17	(1) all surgical procedures; and
18	18	(2) as provided by Section 592.082, the administration
19	19	of psychoactive medications.
20	20	SECTION 3. Chapter 592, Health and Safety Code, is amended
21	21	by adding Subchapters E and F to read as follows:
22	22	SUBCHAPTER E. ADMINISTRATION OF PSYCHOACTIVE MEDICATIONS
23	23	Sec. 592.081. DEFINITIONS. In this subchapter:
24	24	(1) "Capacity" means a client's ability to:
25	25	(A) understand the nature and consequences of a
26	26	proposed treatment, including the benefits, risks, and
27	27	alternatives to the proposed treatment; and
28	28	(B) make a decision whether to undergo the
29	29	proposed treatment.
30	30	(2) "Medication-related emergency" means a situation
31	31	in which it is immediately necessary to administer medication to a
32	32	client to prevent:
33	33	(A) imminent probable death or substantial
34	34	bodily harm to the client because the client:
35	35	(i) overtly or continually is threatening
36	36	or attempting to commit suicide or serious bodily harm; or
37	37	(ii) is behaving in a manner that indicates
38	38	that the client is unable to satisfy the client's need for
39	39	nourishment, essential medical care, or self-protection; or
40	40	(B) imminent physical or emotional harm to
41	41	another because of threats, attempts, or other acts the client
42	42	overtly or continually makes or commits.
43	43	(3) "Psychoactive medication" means a medication
44	44	prescribed for the treatment of symptoms of psychosis or other
45	45	severe mental or emotional disorders and that is used to exercise an
46	46	effect on the central nervous system to influence and modify
47	47	behavior, cognition, or affective state when treating the symptoms
48	48	of mental illness. "Psychoactive medication" includes the
49	49	following categories when used as described in this subdivision:
50	50	(A) antipsychotics or neuroleptics;
51	51	(B) antidepressants;
52	52	(C) agents for control of mania or depression;
53	53	(D) antianxiety agents;
54	54	(E) sedatives, hypnotics, or other
55	55	sleep-promoting drugs; and
56	56	(F) psychomotor stimulants.
57	57	Sec. 592.082. ADMINISTRATION OF PSYCHOACTIVE MEDICATION.
58	58	(a) A person may not administer a psychoactive medication to a
59	59	client receiving voluntary or involuntary residential care
60	60	services who refuses the administration unless:
61	61	(1) the client is having a medication-related
62	62	emergency;
63	63	(2) the refusing client's representative authorized by
64	64	law to consent on behalf of the client has consented to the
65	65	administration;
66	66	(3) the administration of the medication regardless of
67	67	the client's refusal is authorized by an order issued under Section
68	68	592.086; or
69	69	(4) the administration of the medication regardless of
70	70	the client's refusal is authorized by an order issued under Article
71	71	46B.086, Code of Criminal Procedure.
72	72	(b) Consent to the administration of psychoactive
73	73	medication given by a client or by a person authorized by law to
74	74	consent on behalf of the client is valid only if:
75	75	(1) the consent is given voluntarily and without
76	76	coercive or undue influence;
77	77	(2) the treating physician or a person designated by
78	78	the physician provides the following information, in a standard
79	79	format approved by the department, to the client and, if
80	80	applicable, to the client's representative authorized by law to
81	81	consent on behalf of the client:
82	82	(A) the specific condition to be treated;
83	83	(B) the beneficial effects on that condition
84	84	expected from the medication;
85	85	(C) the probable health care consequences of not
86	86	consenting to the medication;
87	87	(D) the probable clinically significant side
88	88	effects and risks associated with the medication;
89	89	(E) the generally accepted alternatives to the
90	90	medication, if any, and why the physician recommends that they be
91	91	rejected; and
92	92	(F) the proposed course of the medication;
93	93	(3) the client and, if appropriate, the client's
94	94	representative authorized by law to consent on behalf of the client
95	95	are informed in writing that consent may be revoked; and
96	96	(4) the consent is evidenced in the client's clinical
97	97	record by a signed form prescribed by the facility or by a statement
98	98	of the treating physician or a person designated by the physician
99	99	that documents that consent was given by the appropriate person and
100	100	the circumstances under which the consent was obtained.
101	101	(c) If the treating physician designates another person to
102	102	provide the information under Subsection (b), then, not later than
103	103	two working days after that person provides the information,
104	104	excluding weekends and legal holidays, the physician shall meet
105	105	with the client, and, if appropriate, the client's representative
106	106	who provided the consent, to review the information and answer any
107	107	questions.
108	108	(d) A client's refusal or attempt to refuse to receive
109	109	psychoactive medication, whether given verbally or by other
110	110	indications or means, shall be documented in the client's clinical
111	111	record.
112	112	(e) In prescribing psychoactive medication, a treating
113	113	physician shall:
114	114	(1) prescribe, consistent with clinically appropriate
115	115	medical care, the medication that has the fewest side effects or the
116	116	least potential for adverse side effects, unless the class of
117	117	medication has been demonstrated or justified not to be effective
118	118	clinically; and
119	119	(2) administer the smallest therapeutically
120	120	acceptable dosages of medication for the client's condition.
121	121	(f) If a physician issues an order to administer
122	122	psychoactive medication to a client without the client's consent
123	123	because the client is having a medication-related emergency:
124	124	(1) the physician shall document in the client's
125	125	clinical record in specific medical or behavioral terms the
126	126	necessity of the order and that the physician has evaluated but
127	127	rejected other generally accepted, less intrusive forms of
128	128	treatment, if any; and
129	129	(2) treatment of the client with the psychoactive
130	130	medication shall be provided in the manner, consistent with
131	131	clinically appropriate medical care, least restrictive of the
132	132	client's personal liberty.
133	133	Sec. 592.083. ADMINISTRATION OF MEDICATION TO CLIENT
134	134	COMMITTED TO RESIDENTIAL CARE FACILITY. (a) In this section,
135	135	"ward" has the meaning assigned by Section 601, Texas Probate Code.
136	136	(b) A person may not administer a psychoactive medication to
137	137	a client who refuses to take the medication voluntarily unless:
138	138	(1) the client is having a medication-related
139	139	emergency;
140	140	(2) the client is under an order issued under Section
141	141	592.086 authorizing the administration of the medication
142	142	regardless of the client's refusal; or
143	143	(3) the client is a ward who is 18 years of age or older
144	144	and the guardian of the person of the ward consents to the
145	145	administration of psychoactive medication regardless of the ward's
146	146	expressed preferences regarding treatment with psychoactive
147	147	medication.
148	148	Sec. 592.084. PHYSICIAN'S APPLICATION FOR ORDER TO
149	149	AUTHORIZE PSYCHOACTIVE MEDICATION; DATE OF HEARING. (a) A
150	150	physician who is treating a client may file an application in a
151	151	probate court or a court with probate jurisdiction on behalf of the
152	152	state for an order to authorize the administration of a
153	153	psychoactive medication regardless of the client's refusal if:
154	154	(1) the physician believes that the client lacks the
155	155	capacity to make a decision regarding the administration of the
156	156	psychoactive medication;
157	157	(2) the physician determines that the medication is
158	158	the proper course of treatment for the client; and
159	159	(3) the client has been committed to a residential
160	160	care facility under Subchapter C, Chapter 593, or other law or an
161	161	application for commitment to a residential care facility under
162	162	Subchapter C, Chapter 593, has been filed for the client.
163	163	(b) An application filed under this section must state:
164	164	(1) that the physician believes that the client lacks
165	165	the capacity to make a decision regarding administration of the
166	166	psychoactive medication and the reasons for that belief;
167	167	(2) each medication the physician wants the court to
168	168	compel the client to take;
169	169	(3) whether an application for commitment to a
170	170	residential care facility under Subchapter C, Chapter 593, has been
171	171	filed;
172	172	(4) whether an order committing the client to a
173	173	residential care facility has been issued and, if so, under what
174	174	authority it was issued;
175	175	(5) the physician's diagnosis of the client; and
176	176	(6) the proposed method for administering the
177	177	medication and, if the method is not customary, an explanation
178	178	justifying the departure from the customary methods.
179	179	(c) An application filed under this section must be filed
180	180	separately from an application for commitment to a residential care
181	181	facility.
182	182	(d) The hearing on the application may be held on the same
183	183	date as a hearing on an application for commitment to a residential
184	184	care facility under Subchapter C, Chapter 593, but the hearing must
185	185	be held not later than 30 days after the filing of the application
186	186	for the order to authorize psychoactive medication. If the hearing
187	187	is not held on the same date as the application for commitment to a
188	188	residential care facility under Subchapter C, Chapter 593, and the
189	189	client is transferred to a residential care facility in another
190	190	county, the court may transfer the application for an order to
191	191	authorize psychoactive medication to the county where the client
192	192	has been transferred.
193	193	(e) Subject to the requirement in Subsection (d) that the
194	194	hearing shall be held not later than 30 days after the filing of the
195	195	application, the court may grant one continuance on a party's
196	196	motion and for good cause shown. The court may grant more than one
197	197	continuance only with the agreement of the parties.
198	198	Sec. 592.085. RIGHTS OF CLIENT. A client for whom an
199	199	application for an order to authorize the administration of a
200	200	psychoactive medication is filed is entitled:
201	201	(1) to be represented by a court-appointed attorney
202	202	who is knowledgeable about issues to be adjudicated at the hearing;
203	203	(2) to meet with that attorney as soon as is
204	204	practicable to prepare for the hearing and to discuss any of the
205	205	client's questions or concerns;
206	206	(3) to receive, immediately after the time of the
207	207	hearing is set, a copy of the application and written notice of the
208	208	time, place, and date of the hearing;
209	209	(4) to be informed, at the time personal notice of the
210	210	hearing is given, of the client's right to a hearing and right to
211	211	the assistance of an attorney to prepare for the hearing and to
212	212	answer any questions or concerns;
213	213	(5) to be present at the hearing;
214	214	(6) to request from the court an independent expert;
215	215	and
216	216	(7) to be notified orally, at the conclusion of the
217	217	hearing, of the court's determinations of the client's capacity and
218	218	best interest.
219	219	Sec. 592.086. HEARING AND ORDER AUTHORIZING PSYCHOACTIVE
220	220	MEDICATION. (a) The court may issue an order authorizing the
221	221	administration of one or more classes of psychoactive medication to
222	222	a client who:
223	223	(1) has been committed to a residential care facility;
224	224	or
225	225	(2) is in custody awaiting trial in a criminal
226	226	proceeding and was committed to a residential care facility in the
227	227	six months preceding a hearing under this section.
228	228	(b) The court may issue an order under this section only if
229	229	the court finds by clear and convincing evidence after the hearing:
230	230	(1) that the client lacks the capacity to make a
231	231	decision regarding the administration of the proposed medication
232	232	and that treatment with the proposed medication is in the best
233	233	interest of the client; or
234	234	(2) if the client was committed to a residential care
235	235	facility by a criminal court with jurisdiction over the client,
236	236	that:
237	237	(A) the client presents a danger to the client or
238	238	others in the residential care facility in which the client is being
239	239	treated as a result of a mental disorder or mental defect as
240	240	determined under Section 592.087; and
241	241	(B) treatment with the proposed medication is in
242	242	the best interest of the client.
243	243	(c) In making the finding that treatment with the proposed
244	244	medication is in the best interest of the client, the court shall
245	245	consider:
246	246	(1) the client's expressed preferences regarding
247	247	treatment with psychoactive medication;
248	248	(2) the client's religious beliefs;
249	249	(3) the risks and benefits, from the perspective of
250	250	the client, of taking psychoactive medication;
251	251	(4) the consequences to the client if the psychoactive
252	252	medication is not administered;
253	253	(5) the prognosis for the client if the client is
254	254	treated with psychoactive medication;
255	255	(6) alternative, less intrusive treatments that are
256	256	likely to produce the same results as treatment with psychoactive
257	257	medication; and
258	258	(7) less intrusive treatments likely to secure the
259	259	client's consent to take the psychoactive medication.
260	260	(d) A hearing under this subchapter shall be conducted on
261	261	the record by the probate judge or judge with probate jurisdiction,
262	262	except as provided by Subsection (e).
263	263	(e) A judge may refer a hearing to a magistrate or
264	264	court-appointed master who has training regarding psychoactive
265	265	medications. The magistrate or master may effectuate the notice,
266	266	set hearing dates, and appoint attorneys as required by this
267	267	subchapter. A record is not required if the hearing is held by a
268	268	magistrate or court-appointed master.
269	269	(f) A party is entitled to a hearing de novo by the judge if
270	270	an appeal of the magistrate's or master's report is filed with the
271	271	court before the fourth day after the date the report is issued.
272	272	The hearing de novo shall be held not later than the 30th day after
273	273	the date the application for an order to authorize psychoactive
274	274	medication was filed.
275	275	(g) If a hearing or an appeal of a master's or magistrate's
276	276	report is to be held in a county court in which the judge is not a
277	277	licensed attorney, the proposed client or the proposed client's
278	278	attorney may request that the proceeding be transferred to a court
279	279	with a judge who is licensed to practice law in this state. The
280	280	county judge shall transfer the case after receiving the request,
281	281	and the receiving court shall hear the case as if it had been
282	282	originally filed in that court.
283	283	(h) As soon as practicable after the conclusion of the
284	284	hearing, the client is entitled to have provided to the client and
285	285	the client's attorney written notification of the court's
286	286	determinations under this section. The notification shall include
287	287	a statement of the evidence on which the court relied and the
288	288	reasons for the court's determinations.
289	289	(i) An order entered under this section shall authorize the
290	290	administration to a client, regardless of the client's refusal, of
291	291	one or more classes of psychoactive medications specified in the
292	292	application and consistent with the client's diagnosis. The order
293	293	shall permit an increase or decrease in a medication's dosage,
294	294	restitution of medication authorized but discontinued during the
295	295	period the order is valid, or the substitution of a medication
296	296	within the same class.
297	297	(j) The classes of psychoactive medications in the order
298	298	must conform to classes determined by the department.
299	299	(k) An order issued under this section may be reauthorized
300	300	or modified on the petition of a party. The order remains in effect
301	301	pending action on a petition for reauthorization or modification.
302	302	For the purpose of this subsection, "modification" means a change
303	303	of a class of medication authorized in the order.
304	304	Sec. 592.087. FINDING THAT CLIENT PRESENTS A DANGER. In
305	305	making a finding under Section 592.086(b)(2) that the client
306	306	presents a danger to the client or others in the residential care
307	307	facility in which the client is being treated as a result of a
308	308	mental disorder or mental defect, the court shall consider:
309	309	(1) an assessment of the client's present mental
310	310	condition; and
311	311	(2) whether the client has inflicted, attempted to
312	312	inflict, or made a serious threat of inflicting substantial
313	313	physical harm to the client's self or to another while in the
314	314	facility.
315	315	Sec. 592.088. APPEAL. (a) A client may appeal an order
316	316	under this subchapter in the manner provided by Section 593.056 for
317	317	an appeal of an order committing the client to a residential care
318	318	facility.
319	319	(b) An order authorizing the administration of medication
320	320	regardless of the refusal of the client is effective pending an
321	321	appeal of the order.
322	322	Sec. 592.089. EFFECT OF ORDER. (a) A person's consent to
323	323	take a psychoactive medication is not valid and may not be relied on
324	324	if the person is subject to an order issued under Section 592.086.
325	325	(b) The issuance of an order under Section 592.086 is not a
326	326	determination or adjudication of mental incompetency and does not
327	327	limit in any other respect that person's rights as a citizen or the
328	328	person's property rights or legal capacity.
329	329	Sec. 592.090. EXPIRATION OF ORDER. (a) Except as provided
330	330	by Subsection (b), an order issued under Section 592.086 expires on
331	331	the anniversary of the date the order was issued.
332	332	(b) An order issued under Section 592.086 for a client
333	333	awaiting trial in a criminal proceeding expires on the date the
334	334	defendant is acquitted, is convicted, or enters a plea of guilty or
335	335	the date on which charges in the case are dismissed. An order
336	336	continued under this subsection shall be reviewed by the issuing
337	337	court every six months.
338	338	SUBCHAPTER F. USE OF RESTRAINTS IN STATE SCHOOLS
339	339	Sec. 592.151. DEFINITION. In this subchapter, "executive
340	340	commissioner" means the executive commissioner of the Health and
341	341	Human Services Commission.
342	342	Sec. 592.152. USE OF RESTRAINTS. The executive
343	343	commissioner shall adopt rules to ensure that:
344	344	(1) a mechanical or physical restraint is not
345	345	administered to a resident of a state school unless the restraint
346	346	is:
347	347	(A) necessary to prevent imminent physical
348	348	injury to the resident or another; and
349	349	(B) the least restrictive restraint effective to
350	350	prevent imminent physical injury;
351	351	(2) the administration of a mechanical or physical
352	352	restraint to a resident of a state school ends immediately once the
353	353	imminent risk of physical injury abates;
354	354	(3) a mechanical or physical restraint is not
355	355	administered to a resident of a state school as punishment; and
356	356	(4) a mechanical or physical restraint is not
357	357	administered as part of a behavior plan to change behavior but only
358	358	to provide immediate protection from imminent harm.
359	359	Sec. 592.153. RESTRAINTS PROHIBITED. (a) A person may
360	360	not use a straitjacket to restrain a resident of a state school.
361	361	(b) A papoose board or restraint board may not be used to
362	362	restrain a resident of a state school unless:
363	363	(1) the device is used as a medical restraint as part
364	364	of a health-related protection that is prescribed by a physician;
365	365	(2) use of the restraint is necessary for protection
366	366	during the time a medical or dental condition exists for the purpose
367	367	of preventing an individual from inhibiting or undoing medical or
368	368	dental treatment; and
369	369	(3) medication is not a viable alternative for the
370	370	individual.
371	371	Sec. 592.154. CONFLICT WITH OTHER LAW. To the extent of a
372	372	conflict between this subchapter and Chapter 322, this subchapter
373	373	controls.
374	374	SECTION 4. Subsections (a) and (b), Article 46B.086, Code
375	375	of Criminal Procedure, are amended to read as follows:
376	376	(a) This article applies only to a defendant:
377	377	(1) who is determined under this chapter to be
378	378	incompetent to stand trial;
379	379	(2) for whom an inpatient mental health facility,
380	380	residential care facility, or outpatient treatment program
381	381	provider has prepared a continuity of care plan that requires the
382	382	defendant to take psychoactive medications; and
383	383	(3) who, after a hearing held under Section 574.106 or
384	384	592.086, Health and Safety Code, has been found not to meet the
385	385	criteria prescribed by Sections 574.106(a) and (a-1), or Sections
386	386	592.086(a) and (b), Health and Safety Code, for court-ordered
387	387	administration of psychoactive medications; or
388	388	(4) who is subject to Article 46B.072.
389	389	(b) If a defendant described by Subsection (a) refuses to
390	390	take psychoactive medications as required by the defendant's
391	391	continuity of care plan, the director of the correctional facility
392	392	or outpatient treatment provider shall notify the court in which
393	393	the criminal proceedings are pending of that fact not later than the
394	394	end of the next business day following the refusal. The court shall
395	395	promptly notify the attorney representing the state and the
396	396	attorney representing the defendant of the defendant's refusal.
397	397	The attorney representing the state may file a written motion to
398	398	compel medication. The motion to compel medication must be filed
399	399	not later than the 15th day after the date a judge issues an order
400	400	stating that the defendant does not meet the criteria for
401	401	court-ordered administration of psychoactive medications under
402	402	Section 574.106 or 592.086, Health and Safety Code. The motion to
403	403	compel medication for a defendant in an outpatient treatment
404	404	program may be filed at any time.
405	405	SECTION 5. Not later than January 1, 2010, the executive
406	406	commissioner of the Health and Human Services Commission shall
407	407	adopt rules required under Section 592.152, Health and Safety Code,
408	408	as added by this Act.
409	409	SECTION 6. If before implementing any provision of this Act
410	410	a state agency determines that a waiver or authorization from a
411	411	federal agency is necessary for implementation of that provision,
412	412	the agency affected by the provision shall request the waiver or
413	413	authorization and may delay implementing that provision until the
414	414	waiver or authorization is granted.
415	415	SECTION 7. This Act takes effect immediately if it receives
416	416	a vote of two-thirds of all the members elected to each house, as
417	417	provided by Section 39, Article III, Texas Constitution. If this
418	418	Act does not receive the vote necessary for immediate effect, this
419	419	Act takes effect September 1, 2009.