By: Shapleigh S.B. No. 1520
A BILL TO BE ENTITLED
AN ACT
relating to the protection and care of individuals with mental
retardation residing in certain residential care facilities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 592.038, Health and Safety Code, is
amended by adding Subsection (d) to read as follows:
(d) Each client has the right to refuse psychoactive
medication, as provided by Subchapter E.
SECTION 2. Subsection (b), Section 592.054, Health and
Safety Code, is amended to read as follows:
(b) Notwithstanding Subsection (a), consent is required
for:
(1) all surgical procedures; and
(2) as provided by Section 592.082, the administration
of psychoactive medications.
SECTION 3. Chapter 592, Health and Safety Code, is amended
by adding Subchapters E and F to read as follows:
SUBCHAPTER E. ADMINISTRATION OF PSYCHOACTIVE MEDICATIONS
Sec. 592.081. DEFINITIONS. In this subchapter:
(1) "Capacity" means a client's ability to:
(A) understand the nature and consequences of a
proposed treatment, including the benefits, risks, and
alternatives to the proposed treatment; and
(B) make a decision whether to undergo the
proposed treatment.
(2) "Medication-related emergency" means a situation
in which it is immediately necessary to administer medication to a
client to prevent:
(A) imminent probable death or substantial
bodily harm to the client because the client:
(i) overtly or continually is threatening
or attempting to commit suicide or serious bodily harm; or
(ii) is behaving in a manner that indicates
that the client is unable to satisfy the client's need for
nourishment, essential medical care, or self-protection; or
(B) imminent physical or emotional harm to
another because of threats, attempts, or other acts the client
overtly or continually makes or commits.
(3) "Psychoactive medication" means a medication
prescribed for the treatment of symptoms of psychosis or other
severe mental or emotional disorders and that is used to exercise an
effect on the central nervous system to influence and modify
behavior, cognition, or affective state when treating the symptoms
of mental illness. "Psychoactive medication" includes the
following categories when used as described in this subdivision:
(A) antipsychotics or neuroleptics;
(B) antidepressants;
(C) agents for control of mania or depression;
(D) antianxiety agents;
(E) sedatives, hypnotics, or other
sleep-promoting drugs; and
(F) psychomotor stimulants.
Sec. 592.082. ADMINISTRATION OF PSYCHOACTIVE MEDICATION.
(a) A person may not administer a psychoactive medication to a
client receiving voluntary or involuntary residential care
services who refuses the administration unless:
(1) the client is having a medication-related
emergency;
(2) the refusing client's representative authorized by
law to consent on behalf of the client has consented to the
administration;
(3) the administration of the medication regardless of
the client's refusal is authorized by an order issued under Section
592.086; or
(4) the administration of the medication regardless of
the client's refusal is authorized by an order issued under Article
46B.086, Code of Criminal Procedure.
(b) Consent to the administration of psychoactive
medication given by a client or by a person authorized by law to
consent on behalf of the client is valid only if:
(1) the consent is given voluntarily and without
coercive or undue influence;
(2) the treating physician or a person designated by
the physician provides the following information, in a standard
format approved by the department, to the client and, if
applicable, to the client's representative authorized by law to
consent on behalf of the client:
(A) the specific condition to be treated;
(B) the beneficial effects on that condition
expected from the medication;
(C) the probable health care consequences of not
consenting to the medication;
(D) the probable clinically significant side
effects and risks associated with the medication;
(E) the generally accepted alternatives to the
medication, if any, and why the physician recommends that they be
rejected; and
(F) the proposed course of the medication;
(3) the client and, if appropriate, the client's
representative authorized by law to consent on behalf of the client
are informed in writing that consent may be revoked; and
(4) the consent is evidenced in the client's clinical
record by a signed form prescribed by the facility or by a statement
of the treating physician or a person designated by the physician
that documents that consent was given by the appropriate person and
the circumstances under which the consent was obtained.
(c) If the treating physician designates another person to
provide the information under Subsection (b), then, not later than
two working days after that person provides the information,
excluding weekends and legal holidays, the physician shall meet
with the client, and, if appropriate, the client's representative
who provided the consent, to review the information and answer any
questions.
(d) A client's refusal or attempt to refuse to receive
psychoactive medication, whether given verbally or by other
indications or means, shall be documented in the client's clinical
record.
(e) In prescribing psychoactive medication, a treating
physician shall:
(1) prescribe, consistent with clinically appropriate
medical care, the medication that has the fewest side effects or the
least potential for adverse side effects, unless the class of
medication has been demonstrated or justified not to be effective
clinically; and
(2) administer the smallest therapeutically
acceptable dosages of medication for the client's condition.
(f) If a physician issues an order to administer
psychoactive medication to a client without the client's consent
because the client is having a medication-related emergency:
(1) the physician shall document in the client's
clinical record in specific medical or behavioral terms the
necessity of the order and that the physician has evaluated but
rejected other generally accepted, less intrusive forms of
treatment, if any; and
(2) treatment of the client with the psychoactive
medication shall be provided in the manner, consistent with
clinically appropriate medical care, least restrictive of the
client's personal liberty.
Sec. 592.083. ADMINISTRATION OF MEDICATION TO CLIENT
COMMITTED TO RESIDENTIAL CARE FACILITY. (a) In this section,
"ward" has the meaning assigned by Section 601, Texas Probate Code.
(b) A person may not administer a psychoactive medication to
a client who refuses to take the medication voluntarily unless:
(1) the client is having a medication-related
emergency;
(2) the client is under an order issued under Section
592.086 authorizing the administration of the medication
regardless of the client's refusal; or
(3) the client is a ward who is 18 years of age or older
and the guardian of the person of the ward consents to the
administration of psychoactive medication regardless of the ward's
expressed preferences regarding treatment with psychoactive
medication.
Sec. 592.084. PHYSICIAN'S APPLICATION FOR ORDER TO
AUTHORIZE PSYCHOACTIVE MEDICATION; DATE OF HEARING. (a) A
physician who is treating a client may file an application in a
probate court or a court with probate jurisdiction on behalf of the
state for an order to authorize the administration of a
psychoactive medication regardless of the client's refusal if:
(1) the physician believes that the client lacks the
capacity to make a decision regarding the administration of the
psychoactive medication;
(2) the physician determines that the medication is
the proper course of treatment for the client; and
(3) the client has been committed to a residential
care facility under Subchapter C, Chapter 593, or other law or an
application for commitment to a residential care facility under
Subchapter C, Chapter 593, has been filed for the client.
(b) An application filed under this section must state:
(1) that the physician believes that the client lacks
the capacity to make a decision regarding administration of the
psychoactive medication and the reasons for that belief;
(2) each medication the physician wants the court to
compel the client to take;
(3) whether an application for commitment to a
residential care facility under Subchapter C, Chapter 593, has been
filed;
(4) whether an order committing the client to a
residential care facility has been issued and, if so, under what
authority it was issued;
(5) the physician's diagnosis of the client; and
(6) the proposed method for administering the
medication and, if the method is not customary, an explanation
justifying the departure from the customary methods.
(c) An application filed under this section must be filed
separately from an application for commitment to a residential care
facility.
(d) The hearing on the application may be held on the same
date as a hearing on an application for commitment to a residential
care facility under Subchapter C, Chapter 593, but the hearing must
be held not later than 30 days after the filing of the application
for the order to authorize psychoactive medication. If the hearing
is not held on the same date as the application for commitment to a
residential care facility under Subchapter C, Chapter 593, and the
client is transferred to a residential care facility in another
county, the court may transfer the application for an order to
authorize psychoactive medication to the county where the client
has been transferred.
(e) Subject to the requirement in Subsection (d) that the
hearing shall be held not later than 30 days after the filing of the
application, the court may grant one continuance on a party's
motion and for good cause shown. The court may grant more than one
continuance only with the agreement of the parties.
Sec. 592.085. RIGHTS OF CLIENT. A client for whom an
application for an order to authorize the administration of a
psychoactive medication is filed is entitled:
(1) to be represented by a court-appointed attorney
who is knowledgeable about issues to be adjudicated at the hearing;
(2) to meet with that attorney as soon as is
practicable to prepare for the hearing and to discuss any of the
client's questions or concerns;
(3) to receive, immediately after the time of the
hearing is set, a copy of the application and written notice of the
time, place, and date of the hearing;
(4) to be informed, at the time personal notice of the
hearing is given, of the client's right to a hearing and right to
the assistance of an attorney to prepare for the hearing and to
answer any questions or concerns;
(5) to be present at the hearing;
(6) to request from the court an independent expert;
and
(7) to be notified orally, at the conclusion of the
hearing, of the court's determinations of the client's capacity and
best interest.
Sec. 592.086. HEARING AND ORDER AUTHORIZING PSYCHOACTIVE
MEDICATION. (a) The court may issue an order authorizing the
administration of one or more classes of psychoactive medication to
a client who:
(1) has been committed to a residential care facility;
or
(2) is in custody awaiting trial in a criminal
proceeding and was committed to a residential care facility in the
six months preceding a hearing under this section.
(b) The court may issue an order under this section only if
the court finds by clear and convincing evidence after the hearing:
(1) that the client lacks the capacity to make a
decision regarding the administration of the proposed medication
and that treatment with the proposed medication is in the best
interest of the client; or
(2) if the client was committed to a residential care
facility by a criminal court with jurisdiction over the client,
that:
(A) the client presents a danger to the client or
others in the residential care facility in which the client is being
treated as a result of a mental disorder or mental defect as
determined under Section 592.087; and
(B) treatment with the proposed medication is in
the best interest of the client.
(c) In making the finding that treatment with the proposed
medication is in the best interest of the client, the court shall
consider:
(1) the client's expressed preferences regarding
treatment with psychoactive medication;
(2) the client's religious beliefs;
(3) the risks and benefits, from the perspective of
the client, of taking psychoactive medication;
(4) the consequences to the client if the psychoactive
medication is not administered;
(5) the prognosis for the client if the client is
treated with psychoactive medication;
(6) alternative, less intrusive treatments that are
likely to produce the same results as treatment with psychoactive
medication; and
(7) less intrusive treatments likely to secure the
client's consent to take the psychoactive medication.
(d) A hearing under this subchapter shall be conducted on
the record by the probate judge or judge with probate jurisdiction,
except as provided by Subsection (e).
(e) A judge may refer a hearing to a magistrate or
court-appointed master who has training regarding psychoactive
medications. The magistrate or master may effectuate the notice,
set hearing dates, and appoint attorneys as required by this
subchapter. A record is not required if the hearing is held by a
magistrate or court-appointed master.
(f) A party is entitled to a hearing de novo by the judge if
an appeal of the magistrate's or master's report is filed with the
court before the fourth day after the date the report is issued.
The hearing de novo shall be held not later than the 30th day after
the date the application for an order to authorize psychoactive
medication was filed.
(g) If a hearing or an appeal of a master's or magistrate's
report is to be held in a county court in which the judge is not a
licensed attorney, the proposed client or the proposed client's
attorney may request that the proceeding be transferred to a court
with a judge who is licensed to practice law in this state. The
county judge shall transfer the case after receiving the request,
and the receiving court shall hear the case as if it had been
originally filed in that court.
(h) As soon as practicable after the conclusion of the
hearing, the client is entitled to have provided to the client and
the client's attorney written notification of the court's
determinations under this section. The notification shall include
a statement of the evidence on which the court relied and the
reasons for the court's determinations.
(i) An order entered under this section shall authorize the
administration to a client, regardless of the client's refusal, of
one or more classes of psychoactive medications specified in the
application and consistent with the client's diagnosis. The order
shall permit an increase or decrease in a medication's dosage,
restitution of medication authorized but discontinued during the
period the order is valid, or the substitution of a medication
within the same class.
(j) The classes of psychoactive medications in the order
must conform to classes determined by the department.
(k) An order issued under this section may be reauthorized
or modified on the petition of a party. The order remains in effect
pending action on a petition for reauthorization or modification.
For the purpose of this subsection, "modification" means a change
of a class of medication authorized in the order.
Sec. 592.087. FINDING THAT CLIENT PRESENTS A DANGER. In
making a finding under Section 592.086(b)(2) that the client
presents a danger to the client or others in the residential care
facility in which the client is being treated as a result of a
mental disorder or mental defect, the court shall consider:
(1) an assessment of the client's present mental
condition; and
(2) whether the client has inflicted, attempted to
inflict, or made a serious threat of inflicting substantial
physical harm to the client's self or to another while in the
facility.
Sec. 592.088. APPEAL. (a) A client may appeal an order
under this subchapter in the manner provided by Section 593.056 for
an appeal of an order committing the client to a residential care
facility.
(b) An order authorizing the administration of medication
regardless of the refusal of the client is effective pending an
appeal of the order.
Sec. 592.089. EFFECT OF ORDER. (a) A person's consent to
take a psychoactive medication is not valid and may not be relied on
if the person is subject to an order issued under Section 592.086.
(b) The issuance of an order under Section 592.086 is not a
determination or adjudication of mental incompetency and does not
limit in any other respect that person's rights as a citizen or the
person's property rights or legal capacity.
Sec. 592.090. EXPIRATION OF ORDER. (a) Except as provided
by Subsection (b), an order issued under Section 592.086 expires on
the anniversary of the date the order was issued.
(b) An order issued under Section 592.086 for a client
awaiting trial in a criminal proceeding expires on the date the
defendant is acquitted, is convicted, or enters a plea of guilty or
the date on which charges in the case are dismissed. An order
continued under this subsection shall be reviewed by the issuing
court every six months.
SUBCHAPTER F. USE OF RESTRAINTS IN STATE SCHOOLS
Sec. 592.151. DEFINITION. In this subchapter, "executive
commissioner" means the executive commissioner of the Health and
Human Services Commission.
Sec. 592.152. USE OF RESTRAINTS. The executive
commissioner shall adopt rules to ensure that:
(1) a mechanical or physical restraint is not
administered to a resident of a state school unless the restraint
is:
(A) necessary to prevent imminent physical
injury to the resident or another; and
(B) the least restrictive restraint effective to
prevent imminent physical injury;
(2) the administration of a mechanical or physical
restraint to a resident of a state school ends immediately once the
imminent risk of physical injury abates;
(3) a mechanical or physical restraint is not
administered to a resident of a state school as punishment; and
(4) a mechanical or physical restraint is not
administered as part of a behavior plan to change behavior but only
to provide immediate protection from imminent harm.
Sec. 592.153. RESTRAINTS PROHIBITED. (a) A person may
not use a straitjacket to restrain a resident of a state school.
(b) A papoose board or restraint board may not be used to
restrain a resident of a state school unless:
(1) the device is used as a medical restraint as part
of a health-related protection that is prescribed by a physician;
(2) use of the restraint is necessary for protection
during the time a medical or dental condition exists for the purpose
of preventing an individual from inhibiting or undoing medical or
dental treatment; and
(3) medication is not a viable alternative for the
individual.
Sec. 592.154. CONFLICT WITH OTHER LAW. To the extent of a
conflict between this subchapter and Chapter 322, this subchapter
controls.
SECTION 4. Subsections (a) and (b), Article 46B.086, Code
of Criminal Procedure, are amended to read as follows:
(a) This article applies only to a defendant:
(1) who is determined under this chapter to be
incompetent to stand trial;
(2) for whom an inpatient mental health facility,
residential care facility, or outpatient treatment program
provider has prepared a continuity of care plan that requires the
defendant to take psychoactive medications; and
(3) who, after a hearing held under Section 574.106 or
592.086, Health and Safety Code, has been found not to meet the
criteria prescribed by Sections 574.106(a) and (a-1), or Sections
592.086(a) and (b), Health and Safety Code, for court-ordered
administration of psychoactive medications; or
(4) who is subject to Article 46B.072.
(b) If a defendant described by Subsection (a) refuses to
take psychoactive medications as required by the defendant's
continuity of care plan, the director of the correctional facility
or outpatient treatment provider shall notify the court in which
the criminal proceedings are pending of that fact not later than the
end of the next business day following the refusal. The court shall
promptly notify the attorney representing the state and the
attorney representing the defendant of the defendant's refusal.
The attorney representing the state may file a written motion to
compel medication. The motion to compel medication must be filed
not later than the 15th day after the date a judge issues an order
stating that the defendant does not meet the criteria for
court-ordered administration of psychoactive medications under
Section 574.106 or 592.086, Health and Safety Code. The motion to
compel medication for a defendant in an outpatient treatment
program may be filed at any time.
SECTION 5. Not later than January 1, 2010, the executive
commissioner of the Health and Human Services Commission shall
adopt rules required under Section 592.152, Health and Safety Code,
as added by this Act.
SECTION 6. If before implementing any provision of this Act
a state agency determines that a waiver or authorization from a
federal agency is necessary for implementation of that provision,
the agency affected by the provision shall request the waiver or
authorization and may delay implementing that provision until the
waiver or authorization is granted.
SECTION 7. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2009.