Texas 2009 - 81st Regular

Texas Senate Bill SB750 Compare Versions

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1	1	By: Zaffirini S.B. No. 750
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the administration of psychoactive medications to
7	7	persons receiving services in a residential care facility.
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 592.083, the administration
19	19	of psychoactive medications.
20	20	SECTION 3. Chapter 592, Health and Safety Code, is amended
21	21	by adding Subchapter E 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 the affective state when treating the
48	48	symptoms 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 residential care facility
98	98	or by a statement of the treating physician or a person designated
99	99	by the physician that documents that consent was given by the
100	100	appropriate person and the circumstances under which the consent
101	101	was obtained.
102	102	(c) If the treating physician designates another person to
103	103	provide the information under Subsection (b), then, not later than
104	104	two working days after that person provides the information,
105	105	excluding weekends and legal holidays, the physician shall meet
106	106	with the client and, if appropriate, the client's representative
107	107	who provided the consent, to review the information and answer any
108	108	questions.
109	109	(d) A client's refusal or attempt to refuse to receive
110	110	psychoactive medication, whether given verbally or by other
111	111	indications or means, shall be documented in the client's clinical
112	112	record.
113	113	(e) In prescribing psychoactive medication, a treating
114	114	physician shall:
115	115	(1) prescribe, consistent with clinically appropriate
116	116	medical care, the medication that has the fewest side effects or the
117	117	least potential for adverse side effects, unless the class of
118	118	medication has been demonstrated or justified not to be effective
119	119	clinically; and
120	120	(2) administer the smallest therapeutically
121	121	acceptable dosages of medication for the client's condition.
122	122	(f) If a physician issues an order to administer
123	123	psychoactive medication to a client without the client's consent
124	124	because the client is having a medication-related emergency:
125	125	(1) the physician shall document in the client's
126	126	clinical record in specific medical or behavioral terms the
127	127	necessity of the order and that the physician has evaluated but
128	128	rejected other generally accepted, less intrusive forms of
129	129	treatment, if any; and
130	130	(2) treatment of the client with the psychoactive
131	131	medication shall be provided in the manner, consistent with
132	132	clinically appropriate medical care, least restrictive of the
133	133	client's personal liberty.
134	134	Sec. 592.083. ADMINISTRATION OF MEDICATION TO CLIENT
135	135	COMMITTED TO RESIDENTIAL CARE FACILITY. (a) In this section,
136	136	"ward" has the meaning assigned by Section 601, Texas Probate Code.
137	137	(b) A person may not administer a psychoactive medication to
138	138	a client who refuses to take the medication voluntarily unless:
139	139	(1) the client is having a medication-related
140	140	emergency;
141	141	(2) the client is under an order issued under Section
142	142	592.086 authorizing the administration of the medication
143	143	regardless of the client's refusal; or
144	144	(3) the client is a ward who is 18 years of age or older
145	145	and the guardian of the person of the ward consents to the
146	146	administration of psychoactive medication regardless of the ward's
147	147	expressed preferences regarding treatment with psychoactive
148	148	medication.
149	149	Sec. 592.084. PHYSICIAN'S APPLICATION FOR ORDER TO
150	150	AUTHORIZE PSYCHOACTIVE MEDICATION; DATE OF HEARING. (a) A
151	151	physician who is treating a client may file an application in a
152	152	probate court or a court with probate jurisdiction on behalf of the
153	153	state for an order to authorize the administration of a
154	154	psychoactive medication regardless of the client's refusal if:
155	155	(1) the physician believes that the client lacks the
156	156	capacity to make a decision regarding the administration of the
157	157	psychoactive medication;
158	158	(2) the physician determines that the medication is
159	159	the proper course of treatment for the client; and
160	160	(3) the client has been committed to a residential
161	161	care facility under Subchapter C, Chapter 593, or other law or an
162	162	application for commitment to a residential care facility under
163	163	Subchapter C, Chapter 593, has been filed for the client.
164	164	(b) An application filed under this section must state:
165	165	(1) that the physician believes that the client lacks
166	166	the capacity to make a decision regarding administration of the
167	167	psychoactive medication and the reasons for that belief;
168	168	(2) each medication the physician wants the court to
169	169	compel the client to take;
170	170	(3) whether an application for commitment to a
171	171	residential care facility under Subchapter C, Chapter 593, has been
172	172	filed;
173	173	(4) whether an order committing the client to a
174	174	residential care facility has been issued and, if so, under what
175	175	authority it was issued;
176	176	(5) the physician's diagnosis of the client; and
177	177	(6) the proposed method for administering the
178	178	medication and, if the method is not customary, an explanation
179	179	justifying the departure from the customary methods.
180	180	(c) An application filed under this section must be filed
181	181	separately from an application for commitment to a residential care
182	182	facility.
183	183	(d) The hearing on the application may be held on the same
184	184	date as a hearing on an application for commitment to a residential
185	185	care facility under Subchapter C, Chapter 593, but the hearing must
186	186	be held not later than 30 days after the filing of the application
187	187	for the order to authorize psychoactive medication. If the hearing
188	188	is not held on the same date as the application for commitment to a
189	189	residential care facility under Subchapter C, Chapter 593, and the
190	190	client is transferred to a residential care facility in another
191	191	county, the court may transfer the application for an order to
192	192	authorize psychoactive medication to the county where the client
193	193	has been transferred.
194	194	(e) Subject to the requirement in Subsection (d) that the
195	195	hearing shall be held not later than 30 days after the filing of the
196	196	application, the court may grant one continuance on a party's
197	197	motion and for good cause shown. The court may grant more than one
198	198	continuance only with the agreement of the parties.
199	199	Sec. 592.085. RIGHTS OF CLIENT. A client for whom an
200	200	application for an order to authorize the administration of a
201	201	psychoactive medication is filed is entitled:
202	202	(1) to be represented by a court-appointed attorney
203	203	who is knowledgeable about issues to be adjudicated at the hearing;
204	204	(2) to meet with that attorney as soon as is
205	205	practicable to prepare for the hearing and to discuss any of the
206	206	client's questions or concerns;
207	207	(3) to receive, immediately after the time of the
208	208	hearing is set, a copy of the application and written notice of the
209	209	time, place, and date of the hearing;
210	210	(4) to be informed, at the time personal notice of the
211	211	hearing is given, of the client's right to a hearing and right to
212	212	the assistance of an attorney to prepare for the hearing and to
213	213	answer any questions or concerns;
214	214	(5) to be present at the hearing;
215	215	(6) to request from the court an independent expert;
216	216	and
217	217	(7) to be notified orally, at the conclusion of the
218	218	hearing, of the court's determinations of the client's capacity and
219	219	best interest.
220	220	Sec. 592.086. HEARING AND ORDER AUTHORIZING PSYCHOACTIVE
221	221	MEDICATION. (a) The court may issue an order authorizing the
222	222	administration of one or more classes of psychoactive medication to
223	223	a client who:
224	224	(1) has been committed to a residential care facility;
225	225	or
226	226	(2) is in custody awaiting trial in a criminal
227	227	proceeding and was committed to a residential care facility in the
228	228	six months preceding a hearing under this section.
229	229	(b) The court may issue an order under this section only if
230	230	the court finds by clear and convincing evidence after the hearing:
231	231	(1) that the client lacks the capacity to make a
232	232	decision regarding the administration of the proposed medication
233	233	and that treatment with the proposed medication is in the best
234	234	interest of the client; or
235	235	(2) if the client was committed to a residential care
236	236	facility by a criminal court with jurisdiction over the client,
237	237	that:
238	238	(A) the client presents a danger to the client or
239	239	others in the residential care facility in which the client is being
240	240	treated as a result of a mental disorder or mental defect as
241	241	determined under Section 592.087; and
242	242	(B) treatment with the proposed medication is in
243	243	the best interest of the client.
244	244	(c) In making the finding that treatment with the proposed
245	245	medication is in the best interest of the client, the court shall
246	246	consider:
247	247	(1) the client's expressed preferences regarding
248	248	treatment with psychoactive medication;
249	249	(2) the client's religious beliefs;
250	250	(3) the risks and benefits, from the perspective of
251	251	the client, of taking psychoactive medication;
252	252	(4) the consequences to the client if the psychoactive
253	253	medication is not administered;
254	254	(5) the prognosis for the client if the client is
255	255	treated with psychoactive medication;
256	256	(6) alternative, less intrusive treatments that are
257	257	likely to produce the same results as treatment with psychoactive
258	258	medication; and
259	259	(7) less intrusive treatments likely to secure the
260	260	client's consent to take the psychoactive medication.
261	261	(d) A hearing under this subchapter shall be conducted on
262	262	the record by the probate judge or judge with probate jurisdiction,
263	263	except as provided by Subsection (e).
264	264	(e) A judge may refer a hearing to a magistrate or
265	265	court-appointed master who has training regarding psychoactive
266	266	medications. The magistrate or master may effectuate the notice,
267	267	set hearing dates, and appoint attorneys as required by this
268	268	subchapter. A record is not required if the hearing is held by a
269	269	magistrate or court-appointed master.
270	270	(f) A party is entitled to a hearing de novo by the judge if
271	271	an appeal of the magistrate's or master's report is filed with the
272	272	court before the fourth day after the date the report is issued.
273	273	The hearing de novo shall be held not later than the 30th day after
274	274	the date the application for an order to authorize psychoactive
275	275	medication was filed.
276	276	(g) If a hearing or an appeal of a master's or magistrate's
277	277	report is to be held in a county court in which the judge is not a
278	278	licensed attorney, the proposed client or the proposed client's
279	279	attorney may request that the proceeding be transferred to a court
280	280	with a judge who is licensed to practice law in this state. The
281	281	county judge shall transfer the case after receiving the request,
282	282	and the receiving court shall hear the case as if it had been
283	283	originally filed in that court.
284	284	(h) As soon as practicable after the conclusion of the
285	285	hearing, the client is entitled to have provided to the client and
286	286	the client's attorney written notification of the court's
287	287	determinations under this section. The notification shall include
288	288	a statement of the evidence on which the court relied and the
289	289	reasons for the court's determinations.
290	290	(i) An order entered under this section shall authorize the
291	291	administration to a client, regardless of the client's refusal, of
292	292	one or more classes of psychoactive medications specified in the
293	293	application and consistent with the client's diagnosis. The order
294	294	shall permit an increase or decrease in a medication's dosage,
295	295	restitution of medication authorized but discontinued during the
296	296	period the order is valid, or the substitution of a medication
297	297	within the same class.
298	298	(j) The classes of psychoactive medications in the order
299	299	must conform to classes determined by the department.
300	300	(k) An order issued under this section may be reauthorized
301	301	or modified on the petition of a party. The order remains in effect
302	302	pending action on a petition for reauthorization or modification.
303	303	For the purpose of this subsection, "modification" means a change
304	304	of a class of medication authorized in the order.
305	305	Sec. 592.087. FINDING THAT CLIENT PRESENTS A DANGER. In
306	306	making a finding under Section 592.086(b)(2) that the client
307	307	presents a danger to the client or others in the residential care
308	308	facility in which the client is being treated as a result of a
309	309	mental disorder or mental defect the court shall consider:
310	310	(1) an assessment of the client's present mental
311	311	condition; and
312	312	(2) whether the client has inflicted, attempted to
313	313	inflict, or made a serious threat of inflicting substantial
314	314	physical harm to the client's self or to another while in the
315	315	facility.
316	316	Sec. 592.088. APPEAL. (a) A client may appeal an order
317	317	under this subchapter in the manner provided by Section 593.056 for
318	318	an appeal of an order committing the client to a residential care
319	319	facility.
320	320	(b) An order authorizing the administration of medication
321	321	regardless of the refusal of the client is effective pending an
322	322	appeal of the order.
323	323	Sec. 592.089. EFFECT OF ORDER. (a) A person's consent to
324	324	take a psychoactive medication is not valid and may not be relied on
325	325	if the person is subject to an order issued under Section 592.086.
326	326	(b) The issuance of an order under Section 592.086 is not a
327	327	determination or adjudication of mental incompetency and does not
328	328	limit in any other respect that person's rights as a citizen or the
329	329	person's property rights or legal capacity.
330	330	Sec. 592.090. EXPIRATION OF ORDER. (a) Except as provided
331	331	by Subsection (b), an order issued under Section 592.086 expires on
332	332	the anniversary of the date the order was issued.
333	333	(b) An order issued under Section 592.086 for a client
334	334	awaiting trial in a criminal proceeding expires on the date the
335	335	defendant is acquitted, is convicted, or enters a plea of guilty or
336	336	the date on which charges in the case are dismissed. An order
337	337	continued under this subsection shall be reviewed by the issuing
338	338	court every six months.
339	339	SECTION 4. Subsections (a) and (b), Article 46B.086, Code
340	340	of Criminal Procedure, are amended to read as follows:
341	341	(a) This article applies only to a defendant:
342	342	(1) who is determined under this chapter to be
343	343	incompetent to stand trial;
344	344	(2) for whom an inpatient mental health facility,
345	345	residential care facility, or outpatient treatment program
346	346	provider has prepared a continuity of care plan that requires the
347	347	defendant to take psychoactive medications; and
348	348	(3) who, after a hearing held under Section 574.106 or
349	349	592.086, Health and Safety Code, has been found not to meet the
350	350	criteria prescribed by Sections 574.106(a) and (a-1), or Sections
351	351	592.086(a) and (b), Health and Safety Code, for court-ordered
352	352	administration of psychoactive medications; or
353	353	(4) who is subject to Article 46B.072.
354	354	(b) If a defendant described by Subsection (a) refuses to
355	355	take psychoactive medications as required by the defendant's
356	356	continuity of care plan, the director of the correctional facility
357	357	or outpatient treatment provider shall notify the court in which
358	358	the criminal proceedings are pending of that fact not later than the
359	359	end of the next business day following the refusal. The court shall
360	360	promptly notify the attorney representing the state and the
361	361	attorney representing the defendant of the defendant's refusal.
362	362	The attorney representing the state may file a written motion to
363	363	compel medication. The motion to compel medication must be filed
364	364	not later than the 15th day after the date a judge issues an order
365	365	stating that the defendant does not meet the criteria for
366	366	court-ordered administration of psychoactive medications under
367	367	Section 574.106 or 592.086, Health and Safety Code. The motion to
368	368	compel medication for a defendant in an outpatient treatment
369	369	program may be filed at any time.
370	370	SECTION 5. This Act takes effect September 1, 2009.